IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 CRL.A.No. 1055 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.398/2010 ST.229/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS – II, ETTUMANUR .................... APPELLANT(S)/RESPONDENT/COMPLAINANT :- -------------------------------------------------------------------- LAILA SHAHABE, KOCHUPARAMBIL, PERUMBAIKADU, P.O. KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S)/ACCUSED & STATE :- ------------------------------------------------------ 1. PUSHPALATHA HARIDAS @ MANI, VISAKHAM, KUMARANALLORE, KOTTAYAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.A.No.1055 of 2010 ~~~~~~~~~~~~~~~~ Dated this the 16th day of July 2010 J U D G M E N T The complainant in a prosecution for the offence punishable under Sec.138 of the N.I.Act is the appellant, as she is aggrieved by the order of acquittal recorded by the trial court under Sec.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that originally the complaint was filed in the Court of Judicial First Class Magistrate-I, Ettumanoor on 12.3.2008, upon which cognizance was taken and the case was posted to 5.3.2010 and thereafter, the case was transferred to the present court. The learned counsel submitted that the transfer of the case was notified by the court but the same was not noticed by the learned counsel for the appellant/complainant and hence neither the complainant Crl.A.No.1055 of 2010 -: 2 :- nor his counsel was present on 5.3.2010, when the case was called in the Judicial First Class Magistrate-II, Ettumanoor which is a Munsiff Court also. 3. It appears that the cheque in question covers an amount of Rs.1,00,000/- and no details were given in the order so as to conclude that the complainant was absent persistently or he was not willing and deliberately abstained from adducing evidence. From the above facts, it appears that the impugned order was issued on the first posting date of the case in the present court. According to me, the learned Magistrate ought not to have issued such an order especially when the case is transferred from the court of Judicial First Class Magistrate-I, Ettumanoor and posted for first time in the present court. Therefore, I am of the view that the complainant/appellant can be given one more opportunity to prosecute the matter on merit. In the result, this Crl.A. is disposed of setting aside the order dated 5.3.2010 in S.T.No.229/2009 of the Crl.A.No.1055 of 2010 -: 3 :- court of Judicial First Class Magistrate-II, Ettumanoor and the appellant/complainant is directed to appear in the said court on 16th August, 2010 on which date, the learned Magistrate is directed to restore the complaint on file and to proceed with the same in accordance with procedure and law and dispose of the same on merit. V.K.MOHANAN, JUDGE. Jvt