IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 2820 of 2008(B) ------------------------------------- (CC.NO.1524/2001 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM) .................... APPELLANT/ COMPLAINANT: ------------------------------------------ T.S.SOMASUNDARAN, S/O. SANKARAN NAIR, AGED 48, THACHUKUZHIYIL HOUSE, EDAKKATTUVAYAL P.O., ERNAKULAM DT. BY ADVS. MR.SUNU P.JOHN, MR.C.DEVANAND. RESPONDENTS/ ACCUSED/ STATE: --------------------------------------------------- 1. K.N. PRADEEP, S/O. NARAYANAN, AGED ABOUT 40, KAYYALAPARAMBIL HOUSE, PARAPANGODU KARA, EDAKKATTUVAYAL VILLAGE. EDAKKATTUVAYAL P.O., ERNAKULAM DT. 2. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. --------------------------- CRL.A.NO.2820 OF 2008 ------------------------------ Dated this the 11th day of June, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed by the JFCM-I, Ernakulam in C.C.No.1524/2001. An action was initiated under Section 138 of the N.I.Act and the accused has been acquitted for the absence of the complainant on the relevant date. A perusal of the proceeding paper would reveal that when the case was pending, non bailable warrant was issued and Sections 82 and 83 of Cr.P.C steps were taken against him and it was in such a situation that the absence of the complainant was taken note of by the court to acquit the accused. I feel that it is not at all a proper procedure adopted by the court below and the court should have waited for the outcome and even the presence of the complainant will not improve the matter when the accused had not reached the court. Therefore I set aside the order of acquittal under Section 256(1) Cr.P.C and direct the learned Magistrate to restore the case back to file and proceed further in accordance with law. The complainant is 2 CRL.A.2820/08 directed to appear before the court below on 17.7.2009. M.N. KRISHNAN, JUDGE cl 3 CRL.A.2820/08 4 CRL.A.2820/08