IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 CRL.A.No. 518 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1035/2007 Dated 31/10/2007 ST.725/2005 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI-5. .................... APPELLANT: COMPLAINANT: -------------------------------------------- ICICI BANK LTD., EMGEE SQUARE, NEAR PADMA JN. M.G.ROAD,ERNAKULAM, REP. BY ITS PRINCIPAL OFFICER, MR.SUBHRANSU. BY ADV. SRI.KKM.SHERIF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.SHEENA SAMUEL RESPONDENTS: ACCUSED: ------------------------------------------- 1. KOTTARATHIL RAMAN KABIR DAS, 57/804, MAHAKAVI G.ROAD, IYYATHIL JN., KOCHI-11. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V. GIRI, J. ------------------------------- Crl.Appeal.NO. 518 2008 --------------------------------- Dated this the 19th day of August, 2008. JUDGMENT The complainant in ST.No.725/05 on the files of the JFCM Court-III, Kochi is the appellant herein. The complainant had instituted the proceedings on the allegation that a cheque issued by the accused for payment of a debt was dishonoured and therefore, the accused had committed the offence under section 138 of the Negotiable Instructions Act. The accused had appeared and was enlarged on bail. But it seems that on two consecutive days when the matter was posted, the power of attorney holder was not present and therefore counsel for the complainant prayed for time. The court below taking note of the fact that twice the case was posted as a last chance and once with an endorsement that no further time will be granted, rejected the request made on behalf of the complainant and acquitted the accused under section 256(i) of the Cr.P.C. It is the said order of acquittal which has been challenged in this appeal. CRA.518 /2008 2 2. I heard learned counsel for the appellant. There is no appearance on behalf of the accused. I have perused the order sheet in ST.No.725/2005 . It seems that the complainant was present on several occasions . Learned counsel for the appellant submits that the person authorised by the complainant had apparently been compelled to travel through out the length and breadth of Kerala and Tamil Nadu. It was for this reason he was not present on two consecutive occasions and there was no representation on behalf of the complainant. This version seems to be correct going by the order sheet also. I also take note of the fact that the accused has not cared to enter appearance in this court. I am satisfied that there is no consistent default on the part of the complainant. For all these reasons the appeal is allowed. The order of acquittal is set aside. The court below is directed to further proceed with ST.No.725/2005 in accordance with law. Parties are directed to appear before the court below on 23.10.2008. V. GIRI, JUDGE. Pmn/ CRA.518 /2008 3