IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 425 of 2005(A) ----------------------------------- CC.509/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KOLENCHERRY .................... APPELLANT/COMPLAINANT ---------------------------------------- M/S.ST.GEORGE, CHITTY FUND, KARAKKATTU BUILDINGS, KANINADU P.O., PUTHENCRUZ VILLAGE, REP. BY ANIL KUMAR, S/O.NARAYANAN, AREEPARA HOUSE, KANINADU P.O., ACCOUNTANT, ST. GEORGE CHITTY FUND, DO.DO. BY ADV. MR.T.KURIAKOSE PETER MR.ABRAHAM P.GEORGE RESPONDENTS/ACCUSED & STATE ---------------------------------------------------- 1. K.K. SHYJU, KALLANPARAMBIL HOUSE, VILANGU P.O., KIZHAKKAMBALAM VILLAGE. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR. R1 BY ADV. SMT.J.SHEEBA MARIAM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 425 OF 2005 = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed in C.C.509/01 of the Judicial First Class Magistrate, Kolenchery. It was a complaint filed u/s 138 of the Negotiable Instruments Act which ended in acquittal on account of the absence of the complainant. The learned counsel for the respondent would submit it was on account of the fault of the complainant it ended in acquittal. A perusal of paragraph 2 of the memorandum of appeal would show that on the eventful day an application at least was filed for excusing the absence of the complainant. The court did not allow it and rejected the prayer and then acquitted the accused u/s 256(1) Cr.P.C. I feel an opportunity has to be given for the reason there is no gross negligence or grave misconduct. Therefore the Crl.Appeal is allowed and the order of acquittal passed by the learned Magistrate u/s 256(1) of Cr.P.C. is set aside. The learned Magistrate is directed to restore the case back to file Crl. Appeal NO. 425 OF 2005 -:2:- and proceed in accordance with law after affording opportunity to both the sides to adduce evidence in support of their respective contentions. Parties are directed to appear before the court below on 17.8.2009. In case the accused does not appear the complainant is directed to take out notice to the accused. M.N. KRISHNAN, JUDGE. ul/-