IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRL.A.No. 820 of 2008() {S.T.NO.1803/2005 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... APPELLANT/COMPLAINANT: ---------------------------------------------- BINU K.MANI, MANJIRATHIL VEEDU, M.M.NAGAR,MUTTAMBALAM P.O., KOTTAYAM. BY ADV. SRI.ANTONY C. ETTUKETTIL RESPONDENTS/ACCUSED & STATE: --------------------------------------------------------- 1. LATHA V.JOH, NJALLANATTU VEEDU, COLLECORATE P.O., (VIEDO PARK,G.S.COMPLEX, GOOD SHEPERED ROAD,KOTTAYAM.) 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CR.A.No.820 of 2008 ------------------------- Dated this the 27th day of August, 2008. JUDGMENT The complainant in C.C.No.1803/05 on the files of the Chief Judicial Magistrate, Kottayam, is the appellant herein. 2. The calender case arose out of a complaint filed by the complainant against the 1st respondent alleging an offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 3. The court below acquitted the accused under Section 256(1) of the Code of Criminal Procedure on the premise that the complainant is absent when the case was called and there was no representation. Hence this appeal. 4. The order sheet in the case has been produced before me. It cannot be said that the complainant was continuously absent. 5. In the above circumstance and having heard counsel for the appellant, I am of the view that the appellant must be given another opportunity to prosecute the case. CR.A.No.820 of 2008 :: 2 :: Accordingly, the appeal is allowed and the order of acquittal is set aside. The complaint is restored to file. Learned Magistrate shall further proceed with S.T.No.1803/05. The parties are directed to appear on 17.11.2008. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge