IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 CRL.A.No. 429 of 2002() ----------------------- CC.603/1997 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... APPELLANT(S)/COMPLAINANT: -------------------------- K.M.RADHAKRISHNA PILLAI, KULATHUR THEKKATHIL, KULASEKHARAPURAM, KARUNAGAPPALLY. BY ADV. SRI.B.KRISHNA MANI SRI.V.PREMCHAND RESPONDENTS/ACCUSED: ----------------------- 1. K.VENUGOPAL, VIMALA BHAVANAM, NADUVILAKARA MURY, THEVALAKKARA VILLAGE, KARUNAGAPPALLY. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BRIJESH MOHAN FOR R1 SMT.RESMI G. NAIR FOR R1 PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.A.NO.429 OF 2002 (B) ----------------------------------- Dated this the 1st day of April, 2009 J U D G M E N T Complainant is the appellant. His complaint filed under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act' against the respondent/accused, after his appearance pursuant to summons, ended in his acquittal under Section 256(1) of the Code of Criminal Procedure, since the complainant was not present when the case stood posted for hearing. Questioning the correctness of that order, the complainant has preferred this appeal. 2. I heard the counsel of both sides. It is submitted by the learned counsel for the appellant that the complainant was present on all hearing dates and on the previous hearing day preceding the date of the impugned order, the case had been adjourned by notification as there was no sitting of the court. By an inadvertent error, the advocate clerk had not noted the next hearing date correctly, and that occasioned the non-appearance of the complainant before the court, which eventually resulted in the acquittal in favour of the accused. CRL.A.429/02 2 Having regard to the submissions made and taking into account the time lag after the passing of the impugned order, I find that one more opportunity can be given to the complainant to have a disposal of the complaint on merits, subject to terms compensating the respondent. The appellant shall pay a sum of Rs.1,000/- as cost to the respondent within one week from today as a condition precedent for setting aside the impugned order and to restore the complaint to file. Cost shall be paid to the counsel appearing for the respondent. If cost is not paid as directed above, the appeal shall stand dismissed without further orders. If cost is paid, within the time stipulated, the impugned order shall stand set aside, and court below shall restore the complaint to file and dispose of the complaint as expeditiously as possible. Appeal is disposed of as directed above. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.A.NO.429 OF 2002 (B) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 1st April, 2009