IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRL.A.No. 241 of 2007() ----------------------- AGAINST THE ORDER IN CRLP.612/2006 Dated 20/11/2006 CC.128/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT: COMPLAINANT ---------------------- T.J.THOMAS, S/O.THARAYIL OUSEPH, NELLUVAI P.O., ERUMAPETTY VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.SANTHOSH (PODUVAL) RESPONDENTS: ACCUSED/STATE -------------------------- 1. PRADEEP KUMAR, S/O.SUBRAMANIAN, KANAKALATH HOUSE, MURINGATHERY, P.O.NELLUVAI, THRISSUR DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.NAGARAJ NARAYANAN FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.241/2007 -------------------- Dated this the 4th day of September, 2008 JUDGMENT The complainant in C.C.No.128/2005 on the files of the Judicial First Class Magistrate Court-I, Thrissur, is the appellant herein. The calender case arose out of a complaint alleging that the accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act. According to the complainant, he was present on most of the days. But on 26.8.2006, he could not appear before the Court below, since he was laid up due to illness. He had instructed the counsel to seek an exemption from his appearance. On the ground that no medical certificate was produced by the complainant and the reason for his non appearance did not prima facie appear to be genuine, the accused was acquitted under Section 256(1) of Cr.P.C. Same has been challenged in this appeal. 2. Having heard learned counsel for the appellant and having found that there was no persistent default on the Crl.A.241/2007 2 part of the complainant, I am of the view that the complainant is entitled to another chance to prosecute the complaint. 3. Accordingly, the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. The Court below shall further proceed with C.C.No.128/2005, in accordance with law. Parties shall appear before the Court below on 24.11.2008. V.GIRI, Judge mrcs