IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 CRL.A.No. 637 of 2010() ---------------------------------- CC.1442/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... APPELLANT/COMPLAINANT ----------------------------------------- M/S. SREE GOKULAM CHIT & FINANCE CO. (P) LTD., NO.66, ARCOT ROAD, KODAMBAKKAM, CHENNAI, REP. BY ITS POWER OF ATTORNEY HOLDER K.M. LOHITHAKSHAN, AGED 39 YEARS, BUSINESS MANAGER, SREE GOKULAM CHIT & FINANCE CO. (P) LTD., SHERINE BUILDING, JOS JUNCTION, M.G.ROAD, ERNAKULAM, KOCHI-682 016. BY ADV. MR.K.S.BABU, SMT.N.SUDHA. RESPONDENTS/ACCUSED & STATE ----------------------------------------------------- 1. P.V. VALSALA DEVI, W/O. NANDAKUMAR, PADINJATTIYEDATH HOUSE, VENNALA.P.O., KOCHI-682 028. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. V.K.MOHANAN,J. ------------------------------ Crl.Appeal No.637 of 2010 ----------------------------------------------------- Dated this the 29th day of March, 2010 JUDGMENT This is an appeal at the instance of the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, as the complainant is aggrieved by the order dated 2.12.2009 in C.C.No.1442/2006 of the Court of Additional Chief Judicial Magistrate (EO), Ernakulam by which the accused is acquitted under Section 256 (i) of Cr.P.C. 2. The learned counsel for the appellant submitted that on the date of the impugned order, when the case was called in the morning, the complainant as well as the counsel were present but the case was adjourned to after lunch for the settlement, if any, and thus the case was taken in the Chamber of the Magistrate, though complainant was not present. 3. In support of the above submission an affidavit dated 3.2.2010 sworn in by Miss. Aswathy, Advocate, is also filed, wherein it is stated that when the case was called in the morning, the power of attorney of the complainant and the counsel for the complainant Crl.Appeal No.637 of 2010 2 were present and when the case was taken up, to explore the possibility of settlement and at the instance of the court, the case was adjourned with a direction that the case would be taken in the Chamber of the learned Magistrate after noon and therefore the counsel who filed the affidavit directed the power of attorney holder of the complainant that his presence was not required. It was under the above circumstance that the case was taken at 2.30 P.M on 2.12.2009 in the Chamber of the learned Magistrate, and the complainant was not present, but he was represented by the counsel. 4. In the light of the submission made by the learned counsel for the appellant and also on the basis of the affidavit filed by the counsel appearing for the complainant in the court below, I am of the view that after setting aside the impugned order, one more opportunity can be given to the complainant. It is true that the case pertains to the year 2006 and therefore the same requires an earlier disposal. In the light of the above discussion and materials referred above, the order dated 2.12.2009 in C.C.No.1442/2006 of the Court of Addidtional Chief Judicial Magistrate (EO), Ernakulam is set aside Crl.Appeal No.637 of 2010 3 and the complainant is directed to appear before the court below on 29.4.2010 on which date the court below is directed to restore the complaint on file and shall proceed to dispose of it on merit, in accordance with law. Crl.Appeal is allowed accordingly. V.K.MOHANAN,JUDGE. mns