IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 CRL.A.No. 1315 of 2010() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.478/2010 Dated 15/06/2010 ST.1217/2009 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... APPELLANT(S)/COMPLAINANT IN ST 1217/2009 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM :- ---------------------------------------------------------------------------------------- M/S.AC POLYMER INDUSTRIES, DEVELOPMENT PLOT NO.11, INDUSTRIAL ESTATE, KALAMASSERY, ERNAKULAM, A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGER AND AUTHORISED AGENT A.P.POULOSE, SON OF POULOSE, AGED 50 YEARS,RESIDING AT NEELETH HOUSE, PANGODE P.O., ERNAKULAM. BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN RESPONDENT(S)/ACCUSED IN ST.1217/2009 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM/STATE :- ------------------------------------------------------------------------------------------ 1. S.KANNAN,PROPRIETOR,M/S. HINDUSTAN TRADING COMPANY, HAVING OFFICE AT 645, GNT ROAD, RED HILLS,KAVANKARAI,CHENNAI-600 052. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~ Crl.A.No.1315 of 2010 ~~~~~~~~~~~~~~~~ Dated this the 16th day of July 2010 J U D G M E N T Challenging the order dated 30.3.2010 in S.T.No.1217/2009 of the Court of Chief Judicial Magistrate, Ernakulam, by which the accused in a prosecution for the offence punishable under Sec.138 of the N.I.Act at the instance of the complainant/appellant is acquitted under Sec.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that the cheque in question covers an amount of Rs.3,84,000/- and the impugned order was passed on the first date of posting after recording the plea of the accused. It is also the submission of the learned counsel that though there was a direction on the previous posting that the complainant should appear for adducing evidence the same Crl.A.No.1315 of 2010 -: 2 :- was not conveyed to the counsel for the appellant in the lower court and because of the omission on the part of the clerk attached to the counsel appearing in the trial court, the complainant did not appear but he was represented by his counsel. 3. Having regard to the facts and circumstances involved in the case, especially when the cheque in question covers an amount of Rs.3,84,000/- and as there is no materials to hold that the complainant was deliberately absent and failed to adduce evidence and especially the fact that the complainant was represented by his counsel. I am of the view that the learned Magistrate ought not to have issued an order acquitting the accused and he ought to have adjourned the case so as to enable the complainant to adduce evidence and to have a decision on merit. In the result, this Crl.A. is disposed of setting aside the order dated 30.3.2010 in S.T.No.1217/2009 of the Court of Chief Judicial Magistrate, Ernakulam and Crl.A.No.1315 of 2010 -: 3 :- accordingly the complainant/appellant is directed to appear before the trial court on 16th August, 2010 on which date, the learned Magistrate is directed to restore the complaint on file and to proceed with the same in accordance with procedure and law and dispose it on merit. V.K.MOHANAN, JUDGE. Jvt