IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRL.A.No. 200 of 2010() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.71/2010 Dated 25/01/2010 ST.420/2009 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA ................................................................................ APPELLANT(S): PETITIONER/COMPLAINANT --------------------------------------------------------------- SMT.SANTHA, W/O.DIVAKARAN, KOCHUVEETTIL HOUSE, MADIRHINKANDAM KARA, MUTHALAKODAM.P.O, THODUPUZHA. BY ADVS. SRI.BIJU P.SEBASTIAN SRI.BIJUMON JACOB RESPONDENT(S): ACCUSED & STATE ----------------------------------------------------- 1. SRI.N.SURENDRAN, SHYNI NIVAS, VENGALLOOR.P.O, THODUPUZHA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.JOICE GEORGE FOR R1 SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.200 of 2010 ------------------------------- Dated this the 26th day of March, 2010. J U D G M E N T This appeal is preferred by the complainant, in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act, as he is aggrieved by the order of acquittal u/s.256(1) of Cr.P.C., recorded by the learned Magistrate in S.T.No.420/09 of CJM Court, Muttom, Thodupuzha. 2. The learned counsel for the appellant submitted that, the case was instituted on 8.12.2009, after recording the sworn statement of the complainant, on that day itself, summons was issued to the accused and posted the same on 1.1.2010 for the appearance of the accused. According to the learned counsel, the clerk attached to the office of the counsel for the complainant, mistakenly noted down the date as 11.1.2010 instead of 1.1.2010. It was under the above background, no representation was made for and on behalf of the complainant. 3. From the facts it appears that, the cheque in question cover for an amount of Rs.10,000/- and the complainant is a lady. Infact, the case pertained to the year 2009 and it instituted Crl. APPEAL No.200 of 2010 2 only on 8.12.2009. It is also relevant to note that, the case stand posted on 1.1.2010, only for the appearance of the accused and therefore even if the complainant was absent on that day, his presence was not necessary or inevitable. From the factual position involved in the case, it does not warrant an order like the present way, especially in the light of the decisions reported in Alice George Vs. Dy. Superintendent of Police [2003(1) KLT 339] and Don Bosco Vs. Partech Computers Ltd. [2005(2) KLT 1003]. Therefore, the impugned order is not sustainable. In the result, this appeal is allowed, setting aside the order dated 1.1.2010 in case No.S.T.429/09 of CJM Court, Muttom, Thodupuzha. Accordingly, the complainant is directed to appear before the court below on 27.4.2010 on which date, the court below is directed to restore the complaint on file and to proceed in accordance with the procedure and law and dispose of the same on merit. V.K.MOHANAN, Judge. ami/