IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 CRL.A.No. 1251 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.427/2007 Dated 02/07/2007 CC.684/2004 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... APPELLANT: COMPLAINANT ---------------------- N.P.R.FINANCE LTD., 41/1787, CHITTOOR ROAD, KOCHI-18, REPRESENTED BY BRANCH MANAGER E.NARAYANAN, S/O EASWARAN, AGED 35, 47/1987, CHITTOOR ROAD, KOCHI-18. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: ACCUSED -------------------- 1. BINDU K.S., S/O S.SUDHI, 13/692, SUDHEENTRALAYAM, PEROOR, ETTUMANNOOR, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY P.P. SRI. S.U. NAZAR. BY ADV. SRI.SAJIV.C.K. FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1251 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 JUDGMENT The appellant is aggrieved by the dismissal of his complaint under Section 256 Cr.P.C. in a prosecution under section 138 of the N.I. Act. The sequence of events in the case reveals that the complainant has been examined and cross examined. S. 313 examination was also conducted. Later, an application under section 311 Cr.P.C. was filed to recall PW1. The same was allowed. Additional proof affidavit was filed. The complainant's counsel happened to be absent when the case was called for cross examination. The learned counsel for the appellant submits that the absence of the complainant's counsel and consequent inability to proceed with the matter were not wilful or intentional. The counsel had gone to another court. The case has been passed over for examination of the complainant in the afternoon, but the counsel for the complainant could not be present. Crl.A.No. 1251 of 2007 2 2. The respondent has been served. The counsel has entered appearance. There is no serious dispute raised about the assertions of fact made by the learned counsel for the appellant. 3. Having considered all the relevant inputs, I am satisfied that the appellant deserves a further opportunity to prosecute his complaint. 4. In the result: a) This appeal is allowed. b) The impugned order is set aside. c) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law. 6. The parties shall appear before the learned Magistrate on 17.10.2008 to continue the proceedings. (R. BASANT) Judge tm