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. 303 of 2007() ----------------------- CC.1500/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM AGAINST THE JUDGEMENT/ORDER IN CRLP.518/2006 Dated 24/01/2007 .................... APPELLANT/PETITIONER/COMPLAINANT ------------------------------------------------------------- M/S.VAJRA CHITS & FINANCE (REG.NO. LD/K/84/EH), CHENGANNUR, REP. BY PROPRIETOR MR.SANTHOSHKUMAR, SANTHOSH BHAVAN, KODANCHIRA, PULIYUR (PO), CHENGANNUR, ALAPPUZHA DISTRICT-689 510. BY ADV. SRI.SAIBY JOSE KIDANGOOR RESPONDENTS/ ACCUSED AND STATE: --------------------------------------------------------- 1. GOPALAKRISHNAN NAIR.S.G., VRINDAVAN HOUSE, MADAPPALLY P.O., CHANGANASSERY, KOTTAYAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.JOHN BRITTO FOR R1 SRI.C.A.RAJEEV FOR R1 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.303/2007 -------------------- Dated this the 4th day of September, 2008 JUDGMENT The complainant in C.C.No.1500/2003 on the files of the Judicial First Class Magistrate, Ernakulam, is the appellant herein. The calender case arose out of a complaint alleging that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. A cheque was issued for an amount of Rs.85,500/-. Apparently, on 16.12.2005, when the case was posted for appearance of the parties, the complainant was not present and the learned Magistrate proceeded to acquit the accused under Section 256(1) of Cr.P.C. Learned counsel for the appellant submits that the absence of the complainant on the said date was not willful. 2. Having regard to the facts and circumstances of the case and having heard learned counsel on both sides, I am of the view that the complainant is entitled to another chance to prosecute the complaint. Crl.A.303/2007 2 3. Accordingly, the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. The Court below shall further proceed with C.C.No.1500/2003, in accordance with law. Parties to appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs