IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 CRL.A.No. 352 of 2008() ----------------------- CC.673/1997 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... APPELLANT: COMPLAINANT ---------------------- M.VALSAN,S/O.VASU KAITHAPADATH HOUSE,P.O. KARUVANTHIRUTHI VIA.FEROKE,KOZHIKODE. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. 2. T.P.PRADEEP, S/O.BHASKARAN'PROPRIETOR OF DEVINCI'S CARPENTRY WORKS, THEKKEPURAKKAL HOUSE CHERUVANNUR ,P.O. FEROKE,KOZHIKODE. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal.No.352 of 2008 ------------------------------------- Dated this the 11th day of June, 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. Cognizance was taken. Trial commenced. The learned Magistrate proceeded to pass the impugned judgment of acquittal on the short ground that the evidence of PW2 shows that the account remained closed on the date when the cheque was presented. No other grounds are shown to support the judgment of acquittal. 2. The learned counsel for the appellant submits that in the light of the decision in Vathsan v. Japahari [2003(3) KLT 972] and Salim v. Thomas [2004(1) KLT 816], the judgment of acquittal is unsustainable in law. 3. The learned counsel for the respondent submits that these decisions cannot be said to apply squarely as in the instant case the account remained closed not at the instance of the accused but on the part of the action taken by the bank. The counsel further submits that at any rate the accused may be Crl.Appeal.No.352 of 2008 2 given a further opportunity to raise all his contentions before the learned Magistrate. The law as it then had persuaded the appellant obviously not to take up any other defence which was available, it is submitted. 4. Having considered all the relevant circumstances, I am satisfied, that the impugned judgment of acquittal deserves to be set aside in the light of the decisions referred above. I am satisfied that there is merit in the contention that further opportunity has to be granted to the accused. 5. In the result: a) This Crl.Appeal is allowed; b) The impugned judgment of acquittal is set aside; c) The learned Magistrate is directed to dispose of the case afresh in accordance with law. 6. The parties shall appear before the learned Magistrate on 21.07.08 without waiting for any further directions. The Registry shall send back records to the court below forthwith such that the records reach the learned Magistrate well prior to 21.07.08. Crl.Appeal.No.352 of 2008 3 7. It is made clear that both parties shall be at liberty to adduce further evidence after the matter reaches the learned Magistrate. The learned Magistrate must make every endeavour to dispose of the complaint as expeditiously as possible considering the fact that the proceedings have been initiated as early as in 1997. (R.BASANT, JUDGE) rtr/-