IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 CRL.A.No. 493 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.113/2008 Dated 07/02/2008 CC.487/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT: COMPLAINANT ---------------------- MOLLY JOHN, SIBI BHAVANAM, VETTIKKOD P.O., PALLICKAL, KATTANAM. BY ADV. SMT.A.SALINI LAL RESPONDENTS: ACCUSED -------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHIBU, BANGLAVIL HOUSE, PAYYANALOOR P.O., NOORANADU, ALAPPUZHA. BY ADV. SRI.M.R.SARIN FOR R2 PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A..No.493 of 2008 ---------------------------------------- Dated this the 29th day of May 2008 J U D G M E N T This is an appeal against acquittal in a prosecution under Section 138 of the Negotiable Instruments Act. Before the trial court the case stood posted to 23/8/2007. On that day, both the complainant and the accused were absent. The accused had applied to excuse his absence. That was allowed. The complainant did not apply. He was not represented also. The case was called twice. But as the complainant and counsel were absent, powers under Section 256 Cr.P.C was invoked and the complaint was dismissed and the accused acquitted. It is submitted that the complainant and his counsel happened to be absent only because of erroneous noting down of the date of listing. The complainant was always diligently prosecuting the complaint. The cheque is for an amount of Rs.1,25,000/-. There is no reason for the complainant who was diligently prosecuting the case all along not to prosecute the case on the date of 23/8/2007. He was prosecuting the case properly all along from 2005. Crl.M.C.No.493/08 2 2. Heard. Both sides. I am satisfied that a lenient view can be taken and the appeal can be allowed. 3. In the result: a) Appeal is allowed. b) Impugned order of acquittal is set aside. 3. The learned Magistrate is directed to dispose of the case afresh in accordance with law as expeditiously as possible. 4. The parties are directed to appear before the learned Magistrate personally/through counsel on 01/07/2008. (R.BASANT, JUDGE) jsr Crl.M.C.No.493/08 3 Crl.M.C.No.493/08 4 R.BASANT, J C.R.M.A.No.4929 of 2008 in Unnumbered Crl.A..No.of 2008 ORDER 29/5/2008