IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 CRL.A.No. 1882 of 2006() ------------------------ ST.283/2006 of JUDL. MAGISTRATE OF FIRST CLASS-II (MOBILE), KOTTAYAM .................... APPELLANT(S): COMPLAINANT: -------------------------- M/S. KERALA CHEMICALS & BIOLOGICAL AGENCY (KOTTAYAM), REP.BY ITS MANAGING PARTNER, SANTHOSH P.MANI, NADUVATHU HOUSE, PUTHUPPALLY P.O., KOTTAYAM. BY ADV. SRI.SHAIJAN C.GEORGE RESPONDENT(S): ACCUSED: ----------------------- 1. SUNIL BABU, PROPRIETOR, MEGHA MEDICALS, ADOOR, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R1 R2 BY P.P. SRI C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.1882 of 2006 ---------------------------------------------- Dated 31st March, 2009. JUDGMENT Appellant is the complainant in S.T.Case No.283 of 2006 which is a prosecution instituted under section 138 of the Negotiable Instruments Act. Originally, the case was filed before the Chief Judicial Magistrate, Kottayam wherein cognizance was taken and while the matter was pending there, the same was transferred to the Court of Judicial First Class Magistrate -II (Mobile), Kottayam and the learned Magistrate, by the impugned order, acquitted the accused under section 256(1) Cr.P.C. stating that, in spite of the specific direction, on the date of the impugned order, the complainant was absent and no proof affidavit was filed. It is the above order challenged in this appeal. 2. I have heard the learned counsel for the appellant as well as the Ist respondent/accused. 3. The learned counsel submitted that it is on the second posting date of the case, the present order was passed by the court below. It is pointed out that the complainant had preferred a petition as C.M.P No.231/2006 in the above case before the court below and the learned Magistrate rejected the said application by Crl.A.1882/06 -:2:- Annexure A order. That is a petition wherein the request was for the issue of a court certificate to the petitioner/complainant for obtaining the certified copies of records relating to the counter petitioner's (accused) account in the Pannivizha Service Co-operative Bank Ltd. No.891, Adoor. I am not proposed to go into the merits of the above order and the grounds mentioned therein for the dismissal of the above petition as per Annexure A order. However, it is gatherable from the above order that on the date of the impugned order, the complainant has approached the court for issue of a certificate with respect to certain document which was a relevant material, according to the complainant, for prosecuting the complaint effectively. It was in the above circumstances, the complainant was absent. But the counsel for the complainant filed C.M.P.No.231/2006 on the date of the impugned order, and therefore, even if the complainant was present, he was not in a position to adduce evidence in the absence of the said document. Therefore, the order of acquittal passed by the trial court under section 256(1) Cr.P.C. appears to be not correct. It is also relevant to note that though the date of offence alleged is 26.9.2004, the complaint was pending for the last two years till the impugned order and thus the complaint was being prosecuted by the complainant. But as per the impugned order, there is no decision on merit and therefore it is just and proper to give an opportunity to the complainant to prosecute the Crl.A.1882/06 -:3:- complaint. In the result, this appeal is allowed setting aside the order dated 29.7.2006 in STC No.283/2006. 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 as early as possible. V.K.MOHANAN, JUDGE kvm/- Crl.A.1882/06 -:4:-