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. 1932 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.893/2007 ST.1295/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT/ COMPLAINANT ----------------------------------------- MIHIR STEELS, 38/1519A, K.V.VITTAPPA PRABHU ROAD, ERNAKULAM KOCHI-682035, REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, VASANTH P.ZAVERI, S/O PRANLAL L.ZAVERI, V/2001 E, 1ST FLOOR, KAMADHENU APARTMENT, CHAKKAMADAM JUNCTION, KOCHI-682002. BY ADV. SRI.H.B.SHENOY RESPONDENTS/ACCUSED & STATE -------------------------------------------------- 1. M.P.VILASINI, PROPREITORIX, GOLDEN INDUSTRIES, KEECHERI, PAPPINISSERI P.O., KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SRI.P.M.PAREETH FOR R.1 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.1932 of 2007 ------------------------- Dated this the 27th day of August, 2008. JUDGMENT The complainant in S.T.No.1295/04 on the files of the Judicial Magistrate of the First Class-I, Kochi, is the appellant herein. 2. The complaint is instituted by the complainant against the 1st respondent on the allegation that she has committed an offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 3. The accused had not appeared and a non-bailable warrant had also been issued against her. According to the complainant, the Power of Attorney holder of the complainant was present on almost all days, since institution of the complaint. On 21.7.2007, the complainant was present, but the next posting of the case was noted by the counsel as 4.9.2007, instead of 4.8.2007. Therefore, the intervening posting dates viz., 13.8.2007 and 20.8.2007 escaped the notice of the appellant and the counsel. This, they realised only on 4.9.2007, according to the appellant. On 20.8.2007, the last posting date, finding that the complainant is absent, the CR.A.No.1932 of 2008 :: 2 :: court below proceeded to acquit the accused under Section 256(1) of the Code of Criminal Procedure. Hence this appeal. 4. Having heard counsel for the appellant and having perused the records, I am of the view that the appellant must be given another opportunity to prosecute the case. Apparently, the accused had not appeared before the court below and a non-bailable warrant had been issued against her. 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.1295/04. The complainant and the accused shall appear in the court below on 24.11.2008. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge