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. 1528 of 2007() ------------------------ AGAINST THE ORDER IN CRLP.533/2006 Dated 13/10/2006 CC.785/2002 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... APPELLANT: ----------- M/S.M & M DISTRIBUTORS, IV/547, RAYONS QUARTERS, CHELAMATTOM, OKKAL, REPRESENTED BY ITS POWR OF ATTORNEY SHRI P.C.ANAS. BY ADV. SRI.JOY THATTIL ITTOOP RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR. 2. SHRI. ABDUL SALAM.E.A., M/S.FIRST LINE MARKETING, MILLINGAL JUNCTION, KANJIRAMATTOM PO., ERNAKULAM. BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R2 SRI.M.MANOJKUMAR (CHELAKKADAN) FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.1528/2007 -------------------- Dated this the 27th day of August, 2008 JUDGMENT The complainant in C.C.No.785/2002 on the files of the Chief Judicial Magistrate Court, Ernakulam, is the appellant herein. The complainant was represented by a Power of Attorney holder. The calender case arose out of a complaint filed against the second respondent for an offence punishable under Section 138 of the Negotiable Instruments Act. 2. It is the case of the complainant that the case stood posted before the Court below on 28.3.2005. Substance of the charge was read over and explained to him and then it was posted to 2.12.2005 for the evidence of the complainant. The complainant was present on the said day, but due to heavy work in the Court, matter stood adjourned to 3.3.2006. There was no sitting on the said day and then it stood adjourned to 9.6.2006. According to the complainant, case was not called and on enquiry it was found that it has been referred to Adalath. But the Cr.A.1528/2007 2 appellant and the counsel did not have any knowledge about the Adalath. Thereafter, matter stood posted to 14.7.2006. It seems that the appellant and the counsel were not aware of the postings. Finding that the complainant is absent, the learned Magistrate proceeded to acquit the accused under Section 256(1) of Cr.P.C. Same has been challenged in the appeal. 3. Having heard learned counsel on either side and having perused the order of the Court below, I am satisfied that the complainant should be afforded another opportunity to prosecute the complaint. In the circumstances, the appeal is allowed. The order of acquittal is set aside and the complaint is restored to file. The Court below shall further proceed with C.C.785/2002. Parties shall appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs