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. 341 of 2007() ----------------------- AGAINST THE ORDER IN CRLP.43/2007 Dated 22/01/2007 ST.602/2003 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... APPELLANT: COMPLAINANT. ----------------------- A.J.THOMAS, KARUVALLIL FINANCIAL ENTERPRISES, ARANMULA, PATHANAMTHITTA. BY ADV. SMT.S.K.DEVI SRI.SANTHOSH P.ABRAHAM RESPONDENTS: STATE & ACCUSED. ----------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.S.VIJAYAKUMAR, MODIYIL THAZAHATHETHIL, EDAYARAMMULA WEST P.O., ARANMMULA, KOZHENCHERRY. BY 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.341/2007 -------------------- Dated this the 4th day of September, 2008 JUDGMENT The complainant in S.T.No.602/2003 on the files of the Chief Judicial Magistrate Court, Pathanamthitta, is the appellant herein. The complaint was filed alleging that the accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act. The accused had issued a cheque for an amount of Rs.64,660/- for discharge of a liability. Cheque, when presented for collection, was dishonoured for want of sufficient funds. Though notice of demand had been sent, there was no reply. Hence the complaint was filed. According to the complainant, he was present on most of the days and the case was posted for evidence on 4.9.2004, 28.9.2004, 21.10.2004 and 18.11.2004 to file proof affidavit. Apparently, proof affidavit was filed and the counsel for the appellant had entrusted the same to his junior. It seems that the counsel was not available when the case was called. This resulted in the acquittal of the accused under Section 256(1) of Cr.P.C. Crl.A.341/2007 2 2. Though served from this Court, there is no appearance on behalf of the accused. 3. In view of the facts narrated above, and in the facts and circumstances of the case, I am of the view that the complainant is entitled to another chance to prosecute the complaint. 4. Accordingly, the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. Court below shall further proceed with S.T.No.602/2003 in accordance with law. Parties shall appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs