IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.A.No. 2422 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.651/2006 Dated 07/12/2006 CC.155/2004 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... APPELLANT: COMPLAINANT ------------------------- JOSEMON, S/O.SUNNY JOSEPH, AGED 24 YEARS, THAIPARAMBIL HOUSE, CHILAVANNUR, KADAVANTHRA. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. SUNNY.A.MATHEW, MANAGING PARTNER, FAIR TRADE MARKETING, RESIDING AT AKKARA HOUSE, SMARATH NIVAS, RAJEEV NAGAR, EDAPPALLY. 2. AJITH KUMAR, PARTNER, FAIR TRADE MARKETING, RESIDING AT AJITH MANZIL, ELAVANKAL ROAD, PALARIVATTOM P.O., ERNAKULAM. 3. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 2422 OF 2006 ------------------------------- Dated this the 22nd September, 2008. JUDGMENT This is an appeal which arose out of an order of acquittal passed by the court below under Section 256(1) Cr.P.C on 9.11.2006 by which the accused therein is acquitted. 2. The case of the appellant is that the above case was instituted under Section 138 of the Negotiable Instruments Act connected with dishonour of a cheque for an amount of Rs.3 lakhs. During the trial the complainant was examined as P.W.1 and the second accused was examined under Section 313 Cr.P.C. The case against the first accused has already been split and the same is pending in L.P. Register. Though the case was adjourned for defence evidence on 26.10.2006, the appellant-complainant preferred a petition to reopen the evidence of prosecution to produce two more documents and the same was allowed and the case was adjourned to 9.11.2006, on which date the complainant was represented through another counsel since counsel actually engaged by the complainant is engaged in another court and it is Crl. Appeal No: 2422/06 2 the further case of the counsel that though the case was taken after some time the counsel for the complainant could not reach in time and hence the Learned Magistrate acquitted the accused under Section 256(1) of Cr.P.C. The above order of acquittal is challenged in this appeal. 3. I have heard counsel for the appellant. Though notice was served on the respondents 1 and 2, there is no representation. It is a fact beyond dispute that the cheque in question involved for an amount of Rs.3 lakhs and the trial was proceeded to certain extent and evidence was already adduced on behalf of the complainant. But it is not complete. It is pointed out by the counsel for the appellant that the case against respondent No:1 has been split up and in fact evidence was taken in C.C.155/04 only against the second accused but by the impugned order the court below has acquitted both the two accused irrespective of the fact that the case against the first accused was split up and pending in L.P. Register. Under the above facts and circumstances it is onlly legal and proper to set aside the impugned order and to direct the court below to take up the complaint on file and to dispose of the same on merits. 4. In the result this appeal is allowed. Impugned order dated Crl. Appeal No: 2422/06 3 9.11.2006 in C.C.155/04 of the Court of Additional Chief Judicial Magistrate (Economic Offences), Ernakulam is set aside and the Court is directed to take up the complaint on file and to proceed with the same in accordance with law and to dispose of the same on merits. Parties are directed to appear before the court below on receiving process from the court and the court below is further directed to take up the complaint and post the same for further consideration within one month from the date of receipt of copy of this judgment. V.K.MOHANAN JUDGE jj