IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRL.A.No. 2133 of 2007() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.910/2007 Dated 04/10/2007 CC.531/2001 of JUDL. MAGISTRATE OF FIRST CLASS, MALAPPURAM .................... APPELLANT: PETITIONER/COMPLAINANT -------------------- P.P.ABDUL RAHMN, S/O KOYA, PARAKKAL POLATH, VELLILA P.O., MANKADA(VIA), MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: RESPONDENTS/ACCUSED/STATE ----------------------- 1. C.H.MOHAMMED @ KUNJAPPA, S/O KUNJIKKOYA, CHUNDAYIL HOUSE, PUZHAKKATHIRI, PANANGAKKARA P.O., MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU SRI.SIBY MATHEW FOR R1 SRI.PHILIP J.VETTICKATTU FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CR.A.No.2133 of 2007 ------------------------- Dated this the 27th day of August, 2008. JUDGMENT The complainant in C.C.No.531/01 on the files of the Judicial Magistrate of the First Class, Malappuram, is the appellant herein. 2. The calender case arose out of a complaint instituted by the complainant against the 1st respondent on the allegation that he has committed an offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 3. The allegation was that the cheque issued by the accused for an amount of Rs.2 lakhs was dishonoured for want of insufficient funds. In spite of notice, the accused failed to repay the amount and hence the complaint was filed. 4. As to the proceedings which took place before the court below, after the sworn statement, paragraphs 3 and 4 of the Criminal appeal refers to the same. The same is extracted hereunder: CR.A.No.2133 of 2008 :: 2 :: “It is submitted that after filing of the complaint, sworn statement was taken. Thereafter the case was posted to 3.12.1999 for appearance of the accused. On 3.12.1999 complainant was present, accused was absent and applied, and case was posted to 6.3.2000 for steps. On 6.3.2000 Non Bailable Warrant was issued to the accused, the case was posted to 19.7.2000. On 19.7.2000 complainant was absent, the accused was not present, and the case was posted to 7.9.2000. On 7.9.2000 the complainant was present, accused was absent and posted the case to 30.3.2001. On 30.3.2001, complainant was present, accused was absent and applied, but the Magistrate rejected the application and Non Bailable Warrant was issued to the accused, the case stands posted to 28.4.2001. On 28.4.2001 the case was converted into C.C.531/2001, complainant was absent and accused present, particulars of offence was read over to the accused and the accused pleaded not guilty. Case was posted to 7.7.2001 for evidence. On 7.7.2001 there was no sitting notified to 9.11.2001. On 9.11.2001 the learned Magistrate posted the case to 5.1.2002 for evidence.” 5. It seems that thereafter on 5.1.2002, the complainant could not appear before the learned Magistrate, because he was advised to take rest after a heart attack. An application was filed before the learned magistrate for CR.A.No.2133 of 2008 :: 3 :: exemption. But the learned magistrate rejected the application and acquitted the accused under section 256 of the Code of Criminal Procedure. 6. I heard learned counsel on both sides. I have considered the case put forward by the appellant. I am of the view that the appellant must be given another opportunity to prosecute the case. In the result, the appeal is allowed and the order of acquittal is set aside. The complaint is restored to file. Learned Magistrate shall further proceed with C.C.No.531/01. The complainant and the accused shall appear in the court below on 24.11.2008. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge