IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 CRL.A.No. 350 of 2007() ------------------------------------ CC.113/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): COMPLAINANT: -------------------------- SURENDRAN, S/O. KADUVETTY RAMAN, MANAKULANGARA DESOM, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR.T.N.MANOJ RESPONDENT(S): ACCUSED: ----------------------- 1. JAYAKUMAR, S/O. MUNDAKKAL NARAYANAN, MANAKULANGARA DESOM, KODAKARA VILLAGE, THRISSUR DISTRICT. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS.MR.SHAJI CHIRAYATH FOR R1 SMT.JIJI M. VARKEY FOR R1 MR.JEEMON K.ABRAHAM BY PUBLIC PROSECUTOR MR.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------- Crl.Appeal No.350 of 2007 - C --------------------------------- Dated this the 30th day of March, 2009 J U D G M E N T Aggrieved by the order of the court below passed under Section 256(1) of the Code of Criminal Procedure in a complaint filed under Section 138 of the negotiable Instruments Act, the complainant preferred this appeal. The complainant is the appellant herein. 2. Initially, the appellant/complainant with an allegation that the accused has committed offence punishable under Section 138 of the Negotiable Instruments Act, as the cheque issued by him for an amount of Rs.50,000/- was dishonoured, filed a complaint as S.T.No.1493/2006 before the Judicial First Class Magistrate court, Irinjalakkuda. According to the appellant, he was prosecuting the complaint earnestly and the case thus stood posted on 15.7.2006 in that court for the appearance of the accused. On that day the case was transferred to the court of Additional Munsiffs Court, Irinjalakkuda with notice to the parties concerned. Learned counsel appearing for the appellant Crl.Appeal No.350 of 2007 - C 2 submitted that the usual practice in the court below is to issue individual notice to the counsel concerned. But, in the present case no such notice was received. The learned counsel for the respondent submitted that the counsel for the accused in the court below received a notice in which the name of the counsel appearing for the complainant in the trial court was also finds a place. Therefore, according to the counsel for the respondent, the above fact has to be ascertained. I am not proposed to go into such details. 3. As indicated above, the cheque in question is covered for an amount of Rs.50,000/- and the complainant was prosecuting the matter earnestly and when the matter was transferred to the present court, contrary to the expectations, counsel for the complainant did not receive notice but at the same time, the counsel for the accused got notice. The outcome of the proceedings shall not be based upon the basis of the notice which claimed or denied by the parties. It is a fact that though the complainant approached the court below with certain allegation, there is no decision on merit. It is also brought to my Crl.Appeal No.350 of 2007 - C 3 notice that when the matter was pending before the Judicial First Class Magistrate, Irinjalakkuda, the case was numbered as S.T.No.1493/2006. But when the case transferred, a new number was given to the same case as C.C.No.113/2006 in the present court and therefore the counsel could not identify the case as the one which was transferred from the earlier court. Under the above circumstances, according to me, it is just and proper to give a chance to the appellant/complainant to prosecute the complaint and to have a decision on merit. In the result, this appeal is allowed, setting aside the order dated 21.11.2006 in C.C.No.113/2006 on the file of the Additional Munsiff and Judicial First Class Magistrate Court, Irinjalakkuda. The parties are directed to appear before the court below on 30.4.2009 on which date the court below is directed to take up the complaint and to proceed with the same and dispose of it on merit. V.K.MOHANAN, JUDGE. bkn/-