IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 CRL.A.No. 816 of 2003() ----------------------- CC.122/1994 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- JOHN JACOB, PULIMOOTIL ENTERPRISES, KANJIKKUZHY, KOTTAYAM. BY ADV. SMT.KOCHUMOL KODUVATH RESPONDENT(S): 1ST ACCUSED & STATE: --------------------------------------------------------------- 1. V.K.JOSEPH, MANAGING PARTNER, LIJO RUBBER INDUSTRIES, MARIATHURUTHU PO, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.A.K.HARIDAS R2 BY PUBLIC PROSECUTOR SRI. ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.816 of 2003 --------------------------------- Dated this the 20th day of August 2011 J U D G M E N T The complainant is in appeal. The complaint filed against the first respondent alleging offence under Sec.138 of the N.I.Act was disposed of by the learned Magistrate under Sec.256(1) Cr.P.C.. The learned Magistrate observed that when the case was called for hearing the complainant was absent. But it appears from the order that an application was filed on behalf of the complainant to excuse his absence. But it is observed that the complainant was regularly absent. The learned counsel submits that in fact the complainant was not absent regularly and that the complainant's physical presence was not required at that stage since the warrant was ordered to be issued against the accused for securing his presence and for that purpose bata was also paid. The case was not posted for evidence. Crl.A.No.816 of 2003 -: 2 :- Since the complainant had taken steps there was no necessity for insisting the physical presence of the complainant. The accused is now represented by Advocate. The order passed by the learned Magistrate cannot be sustained. Hence it is set aside. The acquittal of the accused under Sec.256(1) Cr.P.C. is set aside. The case is remanded to the court of Chief Judicial Magistrate, Kottayam for fresh disposal in accordance with law. Both sides will enter appearance before the Chief Judicial Magistrate, Kottayam on 23.9.2011. N.K.BALAKRISHNAN, JUDGE. Jvt