IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 CRL.A.No. 1413 of 2008() ------------------------ CRLP.590/2008 Dated 08/07/2008 CC.69/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... APPELLANT(S): -------------- THANKAMMA BHASKARAN VADAKKEKARA HOUSE, MEKKADAMPU PO., KADATHY, MUVATTUPUZHA-692316 BY ADV. SRI.P.V.ELIAS SRI.MURALI MANOHAR.R RESPONDENT(S): --------------- 1. MANOJ, S/O.SMMINI KADUTHURUTHY MARADY COLONY NEAR ANGEL VOICE TROOP MARADY, MUVATTUPUZHA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 R2 BY P.P. SMIT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A.No.1413 of 2008. ---------------------------------------------- Dated, 12th March, 2009. JUDGMENT This appeal is at the instance of the complainant in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act since the accused is acquitted under section 256(1) of Cr.P.C. 2. The allegation in the complaint is that the Ist respondent/accused issued a cheque for Rs.25,000/- which, when presented for encashment, was dishonoured due to insufficiency of funds. Cognizance was taken by the Judicial First Class Magistrate-1, Muvattupuzha and C.C.No.503/2006 was instituted. Subsequently, the case was transferred to the court of Judicial First Class Magistrate- II, Muvattupuzha as per the order of the CJM, Ernakulam and thus the case was renumbered as C.C.No.69/2008 in the court of the Judicial Firtst Class Magistrate –II, Muvattupuzha. When the case was taken on 11.3.2008, there was no representation and the complainant was also absent. Hence, by the impugned order, the learned Magistrate acquitted the accused under section 256(1) Cr.P.C. It is the above order challenged in this appeal. 3. I have heard the learned counsel appearing for the appellant as well as the Ist respondent. CRL.A. 1413/08 :-2-: 4. The learned counsel for the appellant submitted that originally the case stood posted for consideration on 20.3.2008 in the Judicial First Class Magistrate court-I, and the case was suo motu advanced by that court without notice to the parties and transferred to the JFMC- II, Muvattupuzha and in that court the case was called on 11.3.2008 on which day neither the complainant nor his counsel was present as there was no notice regarding the posting of the case. Thus the learned counsel submitted that there was no willful laches or negligence on the part of the appellant/complainant or her counsel. 5. From the impugned order, it appears that notice was already published in the notice board of the court about the transfer of cases and mentioning the name of both counsels. But the learned counsel submitted that no notice was published in the court of Judicial First Class Magistrate–I, Muvattupuzha where actually the case was pending for consideration. The above submission is not acceptable as the same may not correct. It is to be noted that the opposite counsel, without any failure, attended the case on the noticed date. However, from the facts given above, it appears to me that there is no willful laches or negligence on the part of the complainant or her counsel in prosecuting the complaint and as such, there is no decision on merit. Even if there is a failure on the part of the counsel in noting down the details of the CRL.A. 1413/08 :-3-: transfer of the case or the posting of the case, the same shall not affect the interest of the parties. Therefore it is only just and proper to give a chance to the appellant/complainant to prosecute the matter. 6. In the result, the impugned order is set aside and the parties are directed to appear before the Judicial First Class Magistrate Court-II, Muvattupuzha, on 4.4.2009 on which day the court below is directed to take C.C.No.694/2008 for consideration and to proceed with the same in accordance with law and dispose of the same on merit. V.K.MOHANAN, JUDGE. kvm/-