IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 CRL.A.No. 41 of 2009() ------------------------- S.T. NO. 303/206 of JUDICIAL FIRST CLASS MAGISTRATE-VI, THIRUVANANTHAPURAM PETITIONER/ COMPLAINANT:- --------------------------------- 1. M.V.JAYAKUMAR KUNNATHU VEEDU, TC.50/1549, THALIYAL KARAMANA PO., THIRUVANANTHAPURAM. BY ADV. MR. M.R.SASITH PANICKER RESPONDENTS/STATE & ACCUSED:- ----------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.RAJAPPAN (POST MESSG.GR.1) NATIONAL BANK OF AGRICULTURAL AND RURAL DEVELOPMENT, STATUE, NEAR CANTONMENT POLICE STATION, THIRUVANANTHAPURAM. R2 BY ADV. MR. V.PREMCHAND MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- Crl.A. No. 41 of 2009 ------------------------------------------------------------ Dated this the 29th day of September, 2009. JUDGMENT Heard both sides. 2. The appellant was the complainant in S.T. No. 303 of 2006 on the file of the Judicial First Class Magistrate-VI, Thiruvananthapuram. It was a prosecution under Section 138 of the Negotiable Instruments Act involving a cheque for Rs.1,35,000/-. After the accused entered appearance, he had subsequently absconded necessitating steps on the part of the appellant. On 16.07.2008, for the reason that the appellant and his counsel were absent and no steps were taken for securing the presence of the accused, the learned Magistrate acquitted the accused under Section 256(1) Cr.P.C. Hence this appeal. 3. I heard the learned counsel for the appellant as well as the learned counsel for the respondent/accused. 4. A perusal of the proceedings paper before the court Crl. Appeal No. 41 of 2009 : 2 : below shows that the appellant was present before court on many of the posting of the case. Hence the acquittal under Section 256(1) Cr.P.C was not justified. The appellant should have been given one more opportunity before visiting him with an order of acquittal. Now that the 2nd respondent/accused has appeared before this Court, I do not think that there is any necessity for fresh steps against the accused. Accordingly, the impugned order is set aside and the matter is remitted to the court below for disposal of S.T. No. 303 of 2006 from the stage at which the accused was acquitted. Both the appellant as well as the 2nd respondent/accused shall appear before the court below without any further notice on 26.10.2009. This appeal is allowed as above. Dated this the 29th day of September, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 41 of 2009 : 3 :