IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 CRL.A.No. 344 of 2010() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.143/2010 Dated 17/02/2010 STC.421/2009 of JUDICIAL FIRST CLASS MAGISTRATE II, HOSDURG. ........................................................................ APPELLANT(S): PETITIONER/COMPLAINANT -------------------------------------------------------------- M.A.KARUNAKARAN NAIR, AGED 65 YEARS, S/O. KATTOOR KUNHAMBU NAIR, KADAVANGANAM, PERIYA VILLAGE, ANDILADUKKAM, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): ACCUSED & STATE ------------------------------------------------------ 1. M.T.KARUNAKARAN, AGED 40 YEARS, T.KUNHIKANNAN, RESIDING AT PULIKKAL, PERIYA VILLAGE & POST, HOSDURG TALUK, KASARAGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.KAMMAPPU, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.Appeal No.344 of 2010 ------------------------------- Dated this the 1st day of March, 2010. J U D G M E N T This appeal is directed against an order of acquittal passed by the Judicial Ist Class Magistrate Court II, Hosdurg, u/s.256(1) of Cr.P.C. in STC No.421/2009. 2. STC No.421/2009 is a case instituted upon the complaint filed by the appellant herein for the offence u/s.138 of the Negotiable Instruments Act in which the cheque is for an amount of Rs.1 lakh. The learned counsel for the appellant submitted that the complainant was absent because he was undergoing treatment for viral arthritis and therefore he could not appear before the court below on 08.01.2010. It is also submitted by the learned counsel that the wife of the complainant was also undergoing treatment for cancer. It was under the above circumstances, the complainant could not appear in the Court below on the dates mentioned in the impugned order. 3. From the impugned order, it appears that the accused Crl.Appeal No.344 of 2010 2 was exempted from his personal appearance and the complainant had also made an application through his counsel to excuse his absence and to appear through the counsel. However, no copy of the said petition is made available and the learned counsel submitted that the absence was for the reason stated above. Though the learned Magistrate had referred that the application to condone the absence of the complainant and dismissed the same, no reason is stated for rejecting the request, especially when the case of the complainant/appellant is that the absence was due to his treatment and also the treatment of his wife. Hence without assigning reason, after refixing the ground for absence application the dismissal of the petition is not proper. Since the cheque in question is for an amount of Rs.1 lakh, I am of the view that one more chance can be given to the complainant but subject to terms. In the result, this appeal is allowed on condition that the appellant/complainant paying a sum of Rs.500/- (Rupees five hundred only) in the Court below on his appearance. Crl.Appeal No.344 of 2010 3 Accordingly, the complainant is directed to appear before the Court below on 05.04.2010, on which date the Judicial Ist Class Magistrate Court II, Hosdurg, is directed to restore the complaint and on his further satisfaction, that the appellant had deposited the amount as directed above, he shall proceed with the complaint and dispose of the same on merit. V.K.MOHANAN, Judge. ami/ Hand over the order.