IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 CRL.A.No. 1202 of 2007() ------------------------ CC.299/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT: COMPLAINANT: ----------------------- P. SUNNY JOSEPH, PERAKATH HOUSE, THEKKUMBHAGAM, TRIPUNITHURA. BY ADV. SRI.S.RAJKUMAR RESPONDENTS: ACCUSED: --------------------- 1. A.J. JOSE, BADGE NO.10192 PHM, PRODUCT HANDLING DEPARTMENT, FACT (CD), AMBALAMEDU P.O., ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.GEORGE MATHEW FOR R1 SRI.SUJITH MATHEW JOSE FOR R1 PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.1202/2007 -------------------- Dated this the 28th day of August, 2008 JUDGMENT The complainant in C.C.No.299/1999 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam is the appellant herein. The calender case arises out of a complaint filed against the first accused alleging an offence punishable under Section 138 of the Negotiable Instruments Act. 2. On receiving summons, the accused appeared. Thereafter, the appellant was examined as PW1 and Exts.P1 to P7 were marked. The accused was also questioned under Section 313 of Cr.P.C. But on that day, complainant was absent and his absence was condoned on application. Thereafter, though the case was posted on several days, the complainant was absent. According to the learned counsel for the complainant, this was on account of a wrong endorsement made in the office diary to the effect that the posting was for 313 statement. Learned Magistrate noting that the complainant is absent, acquitted the accused. Crl.A.1202/2007 2 3. I heard learned counsel on both sides. I have perused the records. In my opinion, the complainant is entitled to another chance to prosecute the complaint. 4. In the circumstances, the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. The Court below shall further proceed with C.C.No.299/1999 in accordance with law. Parties shall appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs