IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST OCTOBER, 2009 / 29TH ASWINA, 1931 CRL.A.No. 1048 of 2009 ------------------------------- [LEVE GRANTED AS PER ORDER IN CRLP.378/2009 Dated 04/06/2009 AGAINST ORDER DATED 21.3.2009 IN CC.9/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI] .................... APPELLANT(S): PETITIONER/COMPLAINANT --------------------- K.RAGHU, S/O.VELAYUDHAN, KARIMBANAKKAL HOUSE, ANAKKARA P.O., OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SRI.V.C.MADHAVANKUTTY RESPONDENTS(S): STATE & ACCUSED ------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RANEESH.K.R., S/O.K.P.RAVI, KUTTAKKAPPARAMBIL VEEDU, KUMARANELLUR P.O., OTTAPALAM TALUK. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1048 of 2009 - A ---------------------------------------- Dated this the 21st day of October, 2011 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 21.3.2009 in C.C.No.9 of 2009 of the court of Judicial First Class Magistrate, Pattambi by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. Counsel for the appellant submitted that the complaint was filed on 5.1.2009 and the cheque in question covers an amount of Rs.80,000/- and though notice was ordered against the accused and posted the case for the appearance of the accused on 21.3.2009, the clerk attached to the counsel for the complainant in the trial court mistakenly noted the posting date as 23.3.2009 instead of 21.3.2009 and consequently, neither the complainant nor the counsel for the complainant is present before the court on 21.3.2009 and the learned CRL.A.NO.1048 of 2009 :-2-: Magistrate issued the order impugned. 3. In the light of the above submission and in view of the order of the learned Magistrate, it appears that the case is not posted for any particular purpose on 21.3.2009 and there is no finding or observation in the order impugned that the accused entered appearance or present at the time of passing the impugned order. Therefore, in the light of the decision of this Court reported in Alice George v. Deputy Superintendent of Police [2003(1) KLT 339], the order of the learned Magistrate cannot be approved, especially when the impugned order was at the threshold of filing the complaint. Therefore, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit. In the result, this Criminal Appeal is disposed of setting aside the order dated 21.3.2009 in C.C.No.9 of 2009 of the Judicial First Class Magistrate Court, Pattambi. Accordingly, the learned Magistrate is directed to restore the complaint on file on 21st November,2011, on which date the appellant/complainant is directed CRL.A.NO.1048 of 2009 :-3-: to appear before the trial court and the learned Magistrate is further directed to proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. This Criminal Appeal is disposed of as above. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1048 of 2009 :-4-: V.K.MOHANAN, J. CRL.A.No. 796 OF 2003 JUDGMENT Dated:4.10.2011 CRL.A.NO.1048 of 2009 :-5-: