IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 CRL.A.No. 499 of 2008() ----------------------- AGAINST THE ORDER IN CRLP.102/2008 CC.177/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... APPELLANT: (COMPLAINANT): ------------------------- K. GOVINDANKUTTY, S/O.K.BALAN NAIR, AGED 52 YEARS, MUNDAKKOTTUKALAM, PANAYUR, VANIYAMKULAM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS: (ACCUSED AND STATE OF KERALA): ------------------------------------------- 1. M.G. GOPALAKRISHNAN, S/O. GOPALAN, MANAKKALATH HOUSE, P.O. CHOORAKKOTTUKARA, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI.C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.499/2008 -------------------- Dated this the 1st day of September, 2008 JUDGMENT The complainant in C.C.No.177/2005 on the files of the Judicial First Class Magistrate Court, Ottappalam, is the appellant herein. The calender case arose out of a complaint alleging an offence punishable under Section 138 of the Negotiable Instruments Act. 2. Apparently, the learned Magistrate found that in spite of repeated directions, the complainant has not turned up. The appellant being a sick person, could not appear in person. An application seeking condonation of his absence was considered and rejected and the accused was acquitted under Section 256(1) of Cr.P.C. This has been challenged in the appeal. 3. There is no appearance on behalf of the accused, in spite of service of notice. 4. In the facts and circumstances narrated above and Crl.A.499/2008 2 taking note of the submissions that the complainant was not keeping well, I am of the view that the complainant is entitled to another chance to prosecute the case. If he is physically unwell, he may seek exemption from personal appearance. It is always possible for him to execute a Power of Attorney, for the proper conduct of the case. But if there is a direction by the learned Magistrate to the complainant to appear in person, then he is bound to do so, unless there are acceptable reasons which justifies his absence. 5. For all these reasons, the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. The Court below shall further proceed with C.C.No.177/2005 in accordance with law. 6. Parties shall appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs