IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 CRL.A.No. 43 of 2008() ------------------------------- CC.256/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT/COMPLAINANT ---------------------------------------- VISHWANATHAN, S/O.VELAYUDHAN, PUVATH HOUSE, ALATHUR DESOM, ANJOOR VILLAGE, THALAPILLY TALUK, THRISSUR DIST. BY ADV. MR.RAJIT MR.RANJIT BABU RESPONDENTS/STATE AND ACCUSED ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MURALEEDHARAN, S/O.ACHUTHAN, PURAKATTU HOUSE, ARTHATTU DESOM, ARTHATTU P.O., THALAPILLY TALUK, THRISSUR DIST. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA R2 BY ADV. MR.NAGARAJ NARAYANAN, MR.RAJAN VELLOTH, MR.SAIJO HASSAN, MR.A.S.SABU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 43 OF 2008 = = = = = = = = = = = = = = = Dated this the 11th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judl. First Class, Magistrate-I, Thrissur in C.C.256/06. It was a 138 of Negotiable Instruments Act case which ended in acquittal on account of the absence of the complainant. A perusal of the order as well as the memorandum of appeal would reveal that the case was posted for evidence as last chance on 16.6.2007. it is seenf rom the order also that an application for excusing the absence was filed on the ground that accused was laid up with fever. So it is a genuine reason and there is no gross negligence or grave misconduct on the part of the complainant. Therefore I am inclined to grant an opportunity. Therefore the order of acquittal passed by the learned Magistrate u/s 256(1) of Cr.P.C. is set aside and the learned Magistrate is directed to restore the case back to file and proceed in accordance with Crl. Appeal NO. 43 OF 2008 -:2:- law after affording equal opportunities to both the sides to produce documentary as well as oral evidence in support of their respective contentions. The complainant is directed to appear before the court below on 28.7.2009 and on his appearance, shall take out summons to the accused. M.N. KRISHNAN, JUDGE. ul/-