IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 CRL.A.No.122 of 2008 (A) ------------------------------ AGAINST THE ORDER IN CRL.L.P.834/2007 Dated 25/09/2007 CC.979/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... APPELLANT: COMPLAINANT: ----------------------- SAJU P.S., PUTHEN MADATHIL, PALLIPPURAM P.O., CHERTHALA. BY ADV. SRI.N.NAGARESH RESPONDENTS: ACCUSED & STATE: ----------------------------------------- 1. SURESH, COCHIN BATTERY HOUSE, M.C.ROAD, AYOOR, KOLLAM DISTRICT. 2. STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.122 of 2008 ------------------------------------------------ Dated this the 27th day of February, 2008 JUDGMENT It is reported that though service is complete, no one has entered appearance for the first respondent. Heard counsel for the appellant. The appeal is one filed against acquittal of the first respondent of offence under Section 138 of the N.I. Act under Section 256(1) Cr.P.C for the reason that the complainant was absent and there was no representation on his behalf and that on the last posting date also there was no representation for the complainant. Technically speaking, there cannot be any complaint regarding acquittal of the accused under Section 256(1) Cr.P.C as the appellant/ complainant had rendered it impossible for the court below to make any progress in the case by his absence. Crl. Appeal No.122 of 2008 -2- 2. It is submitted by the counsel for the appellant that the cheque amount is Rs.13,500/- and at least one opportunity be afforded to the appellant to have his case considered on merits. 3. In the result, allowing this Criminal Appeal, I set aside the order of acquittal passed by the court below and remit the case back to the court below for disposal afresh giving an opportunity to the appellant to establish his case. The appellant shall appear in the court below positively on 26/03/08 on which day the case shall stand posted in the court below. It is made clear that inasmuch as the first respondent has not entered appearance before this Court appropriate steps will have to be taken by the appellant to procure his presence in the court below. Any default on his part in prosecuting the case hereafter will be viewed seriously and the Crl. Appeal No.122 of 2008 -3- learned Magistrate can adopt appropriate procedure in the event of any negligence being shown by the appellant in the matter of prosecuting this case. This appeal is thus, allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-