IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 CRL.A.No. 1823 of 2007() --------------------------------------- (AGAINST THE ORDER IN CRLP.663/2007 DATED 07/09/2007 IN ST.11/2006 OF JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI DATED 25.6.2007) .................... APPELLANT/COMPLAINANT: ------------------------------------------- T.R.SHAHUL HAMEED, AGED 48 YEARS, S/O. THEETHAR RAWTHA, PROPRIETOR, M/S.RAGADH ENTERPRISES, KURISUPALLY ROAD, ERNAKULAM, AND RESIDENT OF RAZEEN VILLA, IRUMPANAM.P.O., ERNAKULAM. BY ADVS. SRI.V. VENUGOPALAN NAIR & SRI.C. UNNIKRISHNAN (KOLLAM) RESPONDENT/ACCUSED: ----------------------------------- 1. P.USHADEVI, AGED 55 YEARS, W/O.R.VIKRAM,22/1491-A,PUTHUSSERIL HOUSE, COCHIN. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M. NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ln M. N.KRISHNAN, J. ---------------------------- CRL.A.NO. 1823 OF 2007 ----------------------------------- Dated this the 25th day of June, 2009. J U D G M E N T This is an appeal preferred against the order of acquittal in S.T.11/2006 on the file of the Judicial First Class Magistrate Court-III, Kochi. Due to the absence of the complainant, acquittal was ordered u/s. 256(1) of Cr.P.C. On 25.06.2007 as the complainant did not enter appearance and as no proof affidavit was filed, the court acquitted the accused u/s. 256 (1) of the Cr.P.C. A perusal of the proceeding paper would reveal that the matter requires reconsideration. The complainant was unable to be present in the court for the reason that he was away in connection with the business in Bengladesh and other states. I find there is no gross negligence or grave mis-conduct and so an opportunity has to be given. Therefore, the order of acquittal passed u/s. 256(1) Cr.P.C. is set aside. The learned Magistrate is CRA.NO. 1823/2007 2 directed to restore the case back to file and proceed in accordance with law after giving a reasonable opportunity to both sides for the conduct of the case. The complainant is directed to appear before the court below on 5.8.2009. Thereafter, he shall take out summons to the accused. M.N.KRISHNAN, JUDGE ln.