IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 CRL.A.No.1550 of 2007 (C) ------------------------------- ORDER IN CRL.L.P.495/2007 Dated 09/08/2007 ST.343/2004 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... APPELLANT: COMPLAINANT -------------------------------- JOHNY THOMAS, PROPRIETOR, KAITHOLIL SUPER MARKET, JANJAR P.O., THODUPUZHA. BY ADV. SRI.SOORAJ T.ELENJICKAL SRI.M.A.JOSEPH MANAVALAN RESPONDENTS/ACCUSED & STATE: ----------------------------------------- 1. DEEPTHI, D/O.RAVEENDRAN NAIR, PULLIKIPARAMBIL THEKKUMBHAGAM,THRIPUNITHURA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI.R.KRISHNA RAJ PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1550 of 2007 ------------------------------------------------ Dated this the 28th day of January, 2008 JUDGMENT Heard. The first respondent/accused in the case also is served. 2. The appeal is against acquittal of the first respondent under Section 256(i) Cr.P.C consequent on absence of the appellant/ complainant in the court below. 3. It is submitted by the counsel for the appellant that the case was being posted only formally in the court below inasmuch as warrant was pending against the first respondent as the first respondent did not appear in court and that it is not a case where the case was posted for evidence and by the non-appearance of the appellant the learned Magistrate could not make any progress in the trial of the case. But all the same, the counsel for the appellant was also not present in the court below when the case was Crl. Appeal No.1550 of 2007 -2- taken up. Under such circumstances, the court cannot be blamed of having passed an order of acquittal. 4. It is also submitted by the counsel for the appellant that the cheque amount is Rs.90,000/-. If that be so, it was all the more the reason why the stake of the party was to be protected by the counsel and it was highly improper on the part of the counsel not to have appeared in the court below when the case stood posted. However, to avoid injustice being worked out, I set aside the order of acquittal and remit the case back to the court below for disposal afresh. The parties shall appear in the court below positively on 21/02/08 even without fresh summons or notice as counsel on both sides take notice of the posting on 21/02/08. K.P.BALACHANDRAN, JUDGE kns/-