IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 CRL.A.No. 1289 of 2009() ------------------------ STC.NO.595/2008 OF CJM, THODUPUZHA APPELLANT/ PETITIONER/COMPLAINANT ------------------------------------ M/S.MUTHOOT LEASING AND FINANCE LTD., THODUPUZHA NOW RENAMED AS MUTHOOT VEHICLE AND ASSET FINANCE LTD., REPRESENTED BY ITS BRANCH MANAGER AND POWER OF ATTORNEY HOLDER SHRI SHIBU JOSEPH S/O.JOSEPH, VETTANAL HOUSE, KARIMPANA P.O. THIRUMARAD VILLAGE,ERNAKULAM DIST. BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT RESPONDENT(S): ACCUSED ---------------------- 1. SURESH.D., S/O.DAMODARAN, CHERADIYIL HOUSE, NAGAPUZHA, THODUPUZH, DOING BUSINESS UNDER THE NAME AND STYLE P & P LOGISTICS NEAR R.T.O. OFFICE, THODUPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.SMT. P.M. PUZHPALATHA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ........................................... CRL.A.NO.1289 OF 2009 ............................................. Dated this the 26th day of August, 2009 J U D G M E N T This is an appeal preferred against the order of acquittal passed under Section 256(1) of the Cr.P.C in a 138 N.I. Act case. Even at the time of granting leave as there was a petition to condone the delay, notice has been ordered and the accused did not enter appearance before the court. The first respondent has been served and he is not represented by any counsel. The reason stated is that it was not on account of a deliberate act of the complainant that he did not appear before the court below. As the complainant was unwell, he could not appear before the court. Though an application for excusing the absence was filed, there was no representation when the case was called and therefore, it resulted in acquittal of the accused. I do not find any deliberate grave misconduct or gross negligence and therefore it is desirable to give an opportunity to the complainant to put forward his case on merits. Therefore, the order of acquittal passed by the : 2 : CRL.A.NO.1289 OF 2009 learned Magistrate under Section 256(1) of the Cr.P.C is set aside and he is directed to restore the case back to file and then dispose of the matter in accordance with law after affording equal opportunities to both sides to submit their respective contentions. The complainant is directed to appear before the court below on 8.10.2009 and thereafter take out notice to the accused for his absence. M.N.KRISHNAN, JUDGE cl : 3 : CRL.A.NO.1289 OF 2009