IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 CRL.A.No. 745 of 2010() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.250/2010 Dated 10/03/2010 ST.572/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT,OTTAPPALAM .................... PETITIONER:COMPLAINANT:APPELLANT: ------------------------------------------------------------------ P.T.KRISHNAKUMAR, AGED 43 YEARS, S/O.LATE NEELAKANDAN, PALLIYALTHODI VEEDU, P.O. KAVALAPPARA, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): ACCUSED: -------------------------------------------- 1. N. MANIKANDAN, AGED 36 YEARS, S/O. BALAKRISHNAN NAIR, PADMALAYAM, P.O. VANIYAMKULAM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 745 of 2010 ---------------------------------------- Dated the 21st Day of July 2010 JUDGMENT The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under section 256(1) Cr.P.C. 2. The learned counsel for the appellant submitted that the complainant was prosecuting the complaint vigilantly and he had filed his proof affidavit in lieu of chief examination. The cheque in question covers an amount of Rs.30,000/-. The learned counsel submitted that on the date of the order, though the complainant was absent he was properly represented and an application was filed to condone his absence. But the learned Magistrate without assigning any valid reason, the said CRL A.745/10 -:2:- application was dismissed and accordingly, acquitted the accused under section 256 Cr.P.C. 3. Going by the impugned order it appears that after recording of the plea of the accused, there were only three postings before passing the impugned order and out of the three posting dates, there was no sitting on 25.11.2009 from which date the case was adjourned to 7.12.2009. Thus on 7.12.2009, though the complainant was absent, he was properly represented and moved an application to condone his absence. From the above facts and circumstances, it appears that it was only proper on the part of the learned Magistrate to give one more opportunity to the complainant to prosecute the matter on merit instead of dismissing the complaint under section 256 Cr.P.C. In the result, this appeal is disposed of setting aside the order dated 7.12.2009 in S.T.Case CRL A.745/10 -:3:- No.572/2009 of the court of Judicial First Class Magistrate, Ottappalam. Accordingly, the appellant is directed to appear before the trial court on 30.8.2010 on which date the learned Magistrate is directed to restore the complaint on file in accordance with the procedure and law and to dispose of the same on merit. The Crl.appeal is disposed of accordingly. V.K.MOHANAN, kvm/- JUDGE