IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 CRL.A.No. 1185 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.547/2010 ST.787/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, OTTAPALAM .................... APPELLANT(S): COMPLAINANT ------------------------- MUHAMMED, AGED 63 YEARS, S/O.LATE AHAMMED, KOLADIKKAL, ALANGOD AMSOM, DESOM, PONNANI TALUK. BY ADV. SRI.P.RAMACHANDRAN RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. ABDULLA, S/O. ABOOBACKER, AGED 42 S/O.PEEDIKIAKKAL VALAPPIL ABDULLA, KOKKUR P.O., CHIYANNUR DESOM, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.M.R.VENUGOPAL, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. Appeal No.1185 of 2010 ------------------------------- Dated this the 28th day of June, 2010. O R D E R This appeal is preferred by the complainant in a prosecution for the offence u/s.138 of Negotiable Instruments Act, challenging the order dated 9.12.2009 in S.T.No.787/09 of the Court of Judicial First Class Magistrate - Ottapalam, by which the learned Magistrate acquitted the accused u/s.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, the order of the learned Magistrate is unsustainable. In support of the contention of the learned counsel, produced the certified copy of `B' diary, which would show that cognizance was taken on 26.3.2009. It is relevant to note that, after filing of the complaint on 11.8.2008, the case was adjourned and finally cognizance was taken u/s.138 of N.I.Act on 26.3.2009. It was on 26.3.2009 summons were issued to the accused and posted the case to 10.11.2009 for the appearance of the accused. The accused entered appearance through the counsel and pleaded Crl. Appeal No.1185 of 2010 2 not guilty, which was recorded and thereafter the case was adjourned for evidence of complainant to 25.11.2009, on which date there was no sitting and the case was notified as adjourned to 9.12.2009. It was on 9.12.2009, the impugned order is passed. 3. From the averments it appears that, the cheque in question covers an amount of Rs.6,25,000/- and the complainant was prosecuting the matter earnestly. 4. Considering the above facts and especially the fact that the cheque in question is for an amount of Rs.6,25,000/-, the learned Magistrate ought to have granted one more chance to the complainant, instead of acquitting the accused u/s.256(1) of Cr.P.C. It is also discernable from the `B' diary extract that, though the complainant was absent, he was represented and an application was filed to excuse his absence. The learned counsel for the appellant/accused submitted that, the complainant was unable to attend the court on that particular date, as he was laid up due to chickenguniya. Neither in the impugned order nor in the proceedings of the court the same day, stated any reason for Crl. Appeal No.1185 of 2010 3 the dismissal of the petition filed, on behalf of the complainant. Thus according to me, it is not proper on the part of the learned Magistrate, acquitting the accused u/s.256(1) of Cr.P.C., in the above factual background and the stage of proceedings of the case. In the result, this appeal is disposed of setting aside the order dated 9.12.2009 of the trial court in S.T.No.787/09. Accordingly, the complainant is directed to appear before the trial court on 28.7.2010, on which date the learned Magistrate is directed to restore the complaint on file and to proceed in accordance with the procedure and law and dispose of the same on merit. Criminal appeal is disposed of accordingly. V.K.MOHANAN, Judge. ami/