IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 CRL.A.No. 1957 of 2011() ------------------------ CC.94/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... APPELLANT: -------------- M.K.SUSHEELAN, S/O.KUNJACHAN, MENOMKATTUNIVARTHIL, PALLIPPURAM P.O, CHERTHALA 688 541 BY ADV. SRI.H.RAMANAN RESPONDENTS: --------------- 1. V.C.SANTHOSH, RADHANILAYAM, AROOR P.O,CHERTHALA 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERLA ERNAKULAM-31 R2 BY P.P. SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 1957 of 2011 ---------------------------------------- Dated the 19th day of November, 2011 JUDGMENT This appeal is preferred at the instance of the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act as he is aggrieved by the order dated 23.8.2011 of the court of the Judicial First Class Magistrate-I, Cherthala in C.C..No.94 of 2009, by which the learned Magistrate, acquitted the accused under section 256(1) Cr.P.C. 2. Counsel for the appellant vehemently submitted that the complainant could not appear before the court below, on the date of the impugned order as he was laid up due to diarrhoea and therefore an application was filed to excuse his absence, but the learned Magistrate dismissed the application stating that there is no evidence in support of medical ground. The counsel submitted that the medical certificate was obtained belatedly and therefore the same could not be produced before the court in time. 3. According to the learned counsel for the appellant, on 5.8.2011 itself, the complainant was absent due to the very same medical ground and a long adjournment was sought for, but the CRL.A. 1957/11 2 matter was posted to 23.8.2011. The learned counsel made available to me a medical certificate dated 14.10.2011 issued by one Dr.Manish, MBBS, Assistant Surgeon, P.H.C, Pallipuram and the O.P.Record issued from the above hospital with respect to the appellant/complainant, which would show that the complainant was treated in the above hospital on 5.8.2011 and certain medicines were prescribed. From the submission of the learned counsel for the appellant and from the facts stated in the appeal memorandum, it appears that the cheque in question covers an amount of Rs.12,000/- and the court has already taken cognizance for the offence punishable under Section 138 of the NI Act. Under the above factual circumstances, according to me, the petitioner can be granted one more opportunity to prosecute the matter on merit, especially, when the appellant has already applied, on the date of the impugned order, to excuse his absence, as evidenced from the impugned order itself. In the result, this appeal is disposed of setting aside the order dated 23.8.2011 in C.C.No.94/2009 of the Court of Judicial First Class Magistrate-I, Cherthala. Accordingly, the appellant/complainant is directed to appear before the trial court on 19.12.2011 on which CRL.A. 1957/11 3 date the learned Magistrate is directed to restore the complaint on file and proceed in accordance with the procedure and law and dispose of the same on merit, as expeditiously as possible. V.K.MOHANAN, JUDGE kvm/- CRL.A. 1957/11 4 V.K.MOHANAN, JUDGE kvm/- CRL.A. 1957/11 5