IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRL.A.No. 1317 of 2008() ------------------------ AGAINST THE ORDER IN CRLP.454/2008 Dated 13/06/2008 ST.868/2006 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... APPELLANT: ----------- M/S ASWIN PAPERS, ERNAKULAM THROUGH ITS MANAGING PARTNER RAVINDRAN , S/O MAHALINGAM, AGED 32 YEARS, RESIDING AT 5.A,5TH FLOOR, KADAVIL COURT, ARANGATH CROSS ROAD, PULLEPADY, ERNAKULAM. BY ADV. SRI.C.T.JESTIN RESPONDENTS: ------------- 1. B.G. KALATHIL, MANAGING PARTNER, SURABHI PUBLICATION, MUNICIPAL BUILDING NEAR PRIVATE BUS STAND, CHANGANASSERY,. 2. JOSE MATHEW, MANAGING PARTNER, SURABHI PUBLICATION, MUNICIPAL BUILDING NEAR PRIVATE BUS STAND, CHANGANASSERY, 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.N.P.SETHU FOR R1 & 2 PUBLIC PROSECUTOR SRI.C.M. KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.1317/2008 -------------------- Dated this the 4th day of September, 2008 JUDGMENT The complainant in S.T.No.868/2006 on the files of the JFCM Court-III, Kochi, is the appellant herein. The case arose out of a complaint filed by the appellant herein alleging that the accused had issued a cheque in discharge of a liability, that the same, on presentation, was dishonoured due to want of sufficient funds. Apparently, on 24.12.2007 finding that the complainant was absent in spite of the direction to make himself available for cross examination, the court below proceeded to acquit the accused under section 256 of the Cr.P.C. The same has been challenged in this Criminal Appeal. 2. The court below took note of the fact that the instant case along with two other cases were posted to 3.10.2007. The case was then adjourned to 23.10.2007. On an application filed by the complainant it was again adjourned to 21.12.2007 with a specific order that he should be present on 21.12.2007. He was not present on Crl.A.1317/2008 2 that day, then the case was adjourned to 24.12.2007 on which day finding that the complainant is not present, the court below acquitted the accused under section 256 of the Cr.P.C. 3. Normally the facts referred to by the court below and which I have referred to above would have to be treated as sufficient to justify an order of acquittal under section 256 of the Cr.P.C. But an explanation has been given by the complainant to the effect that on 21.12.2007 when the case was posted for evidence, due to personal inconvenience the appellant/complainant could not appear on that day and therefore the case was posted to 24.12.2007 as a last chance. On 21.12.2007, the father of the appellant's counsel was admitted in a hospital in a critical condition and due to this, the counsel omitted to intimate the appellant that the case has been posted to 24.12.2007. Since there was no communication, the appellant proceeded to Madras for business purpose. It is therefore that he was absent on the said day. In view of Crl.A.1317/2008 3 the facts stated above and in the interests of justice, I am of the view that the appellant is entitled to get another chance to prosecute the complaint. 4. Accordingly, the appeal is allowed. The order of acquittal is set aside. The complaint is restored to file. The court below shall further proceed with S.T.No.868/2006 in accordance with law. The parties shall appeal before the court below on 24.11.2008. V.GIRI, Judge mrcs