IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 CRL.A.No. 1081 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.525/2010 Dated 07/06/2010 ST.1010/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, OTTAPPALAM .................... APPELLANT(S)/COMPLAINANT :- ---------------------------------------------- K.RAMAKRISHNAN,S/O.KRISHNAN NAIR, AGED 51 YEARS,KUTTATH HOUSE, KAVALAPPARA P.O., KAVALAPPARA AMSOM, ERUPPE DESOM, OTTAPPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S)/STATE AND ACCUSED :- ---------------------------------------------------------- 1. STATE OF KERALA, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. N.AJITHKUMAR,S/O.KUNCHAN,AGED 35 YEARS, NAROTHPARAMBIL VEED,KALATHOD DESOM,OLLUKKARA VILLAGE,OLLUKKARA PO,THRISSUR(NOW RESIDING AT C/O.K.N.VIJAYAN,KSRTC DRIVER,KOTTUVALA HOUSE, KOLAZHI PO,KOLAZHI AMSOM DESOM,THRISSUR). PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------- Crl.A.No.1081 of 2010 --------------------------------- Dated this the 30th day of June 2010 J U D G M E N T Aggrieved by the order dated 25.1.2010 in Summary Trial Case No.1010 of 2006 of the Judicial Magistrate of First Class, Ottapalam, by which the accused acquitted under Sec.256 of Cr.P.C., at the instance of the appellant/complainant in a prosecution under Sec.138 of the N.I.Act preferred this appeal. 2. The learned counsel submitted that the learned Magistrate issued the order, on the first posting date of the case for evidence, after the appearance of the accused. The learned counsel further submitted that cognizance was taken on 6.4.2010 and the case was being adjourned, as the accused was not appearing before the court and on all posting date either the complainant was present or he was Crl.A.No.1081 of 2010 : 2 : represented. 3. According to the learned counsel, the complainant was laid up on 25.1.2010, the date on which the impugned order is issued and to condone his absence he had already filed C.M.P.No.531/2010. On the above facts, it appears to me that the learned Magistrate ought not to have issued such an order and he should have granted the complainant an opportunity to prosecute the matter on merit especially the cheque in question is for an amount of Rs.1,54,500/-. Considering the fact that it was on the first posting of the case for evidence, the complainant was absent and petition was filed to condone his absence the learned Magistrate ought not to have issued the impugned order. But without assigning any proper reason it appears that the said petition was not dismissed. Under the above circumstances, I am of the view that it is only just and proper to grant an opportunity to the complainant to prosecute the matter on merit. Crl.A.No.1081 of 2010 : 3 : In the result, this appeal is disposed of setting aside order dated 25.1.2010 in S.T.No.1010/2006 of the court of Judicial First Class Magistrate, Ottapalam. Accordingly, the complainant/appellant is directed to appear before the court below on 30th July, 2010, on which date the court below is directed to restore the complaint on file and proceed the same in accordance with the procedure and law and dispose of the same on merit. V.K.MOHANAN, JUDGE. Jvt