IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 CRL.A.No. 78 of 2003() ------------------------------- CC.420/2001 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .............................................................................. APPELLANT(S): COMPLAINANT: -------------------------------------------- P.M. SHANIL, S/O. MEERANNAN, PULICKAL HOUSE, ERATTUPETTA P.O. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): STATE & ACCUSED: -------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MAITHEEN, KOORKADAN, MUDICKAL P.O., PALLIPPADY, PERUMBAVOOR. BY ADVS. SRI.RENJITH THAMPAN FOR R1 SRI.T.K.SAJEEV FOR R2 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR FOR R1. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.78 OF 2003 -------------------------- Dated this the 9th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal in C.C.No.420/2001 of the Judicial First Class Magistrate's Court, Erattupetta. It was the complaint preferred u/s.138 of the Negotiable Instruments Act which ended in acquittal u/s.256(1) of the Cr.P.C. for the absence of the complainant. A reading of the appeal memorandum, would reveal that the matter was not posted for evidence and the accused was under the impression that the earlier cases are pending in that Court and therefore he did not attend the Court. It is stated that it was not a deliberate act. I do not want to elaborate, but it has to be stated that there is nothing to prove gross negligence or grave mis-conduct. Therefore, I am inclined to give an opportunity and hence the order of acquittal passed u/s.256(1), Cr.P.C. is set aside and the learned Magistrate, is directed to restore the complaint back to file giving an opportunity to both the complainant and CRL.A.No.78 OF 2003 2 accused and thereafter dispose the matter in accordance with law. If the accused does not appear, complainant has to take steps to issue notice. M.N.KRISHNAN, JUDGE an.