IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 CRL.A.No. 744 of 2010() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.308/2010 Dated 17/03/2010 ST.2317/2008 of JUDL.FIRST CLASS MAGISTRATE COURT,OTTAPPALAM. .................... PETITIONER/COMPLAINANT/APPELLANT: -------------------------------------------------------------- SHORNUR KURIES(P)LTD.,MAIN ROAD, SHORNUR REPRESENTED BY ITS MANAGING DIRECTOR, O.P.UNNIKRISHNAN, S/O.T.K.NAIR,AGED 47 YEARS,”VAISHNAVAM”,SHORNUR,OTTAPALAM TALUK,REPRESENTED BY POWER OF ATTORNEY AGENT A.P.VENUGOPAL,AGED 38 YEARS, S/O.BASKARAN, KOTTILINGAL VEEDU, CHERUTHURUTHY, THALAPILLI TALUK, THRISSUR DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): ACCUSED: -------------------------------------------- 1. K.S.MUHAMMADALI, AGED 43 YEARS, S/O.SAIDALAVI, KURATTUTHODI VEEDU, P.O.CHERUTHURUTHY, THALAPOPILLY TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.A No. 744 of 2010 ---------------------------------------- Dated the 21st Day of July 2010 ORDER The complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the appellant as the complainant is aggrieved by the order of acquittal recorded by the trial court under section 256(1) Cr.P.C. 2. The learned counsel for the appellant submitted that the accused entered appearance only on 13.11.2009 and the impugned order was passed on the next posting date, i.e., 20.11.2009. It is also discernible from the order that though the complainant was absent, an application was filed to condone his absence. Thus, according to the learned counsel, the order impugned is liable to be set aside. 3. On a perusal of the appeal memorandum and on hearing the counsel, it appears that the impugned order was passed on the first posting date of the case after the appearance of the accused on 13.11.2009. The cheque in CRA. 744/10 -:2:- question covers an amount of Rs.35,000/-. It is also discernible from the order that though the complainant was absent, he was properly represented and an application was filed to condone his absence, the learned Magistrate did not assign any valid reason to reject his application. Under the above circumstances, I am of the view that the appellant/complainant can be granted one more opportunity to prosecute the matter on merit. In the result, the order dated 20.11.2009 in S.T.No.2317/2008 of the court of Judicial First Class Magistrate, Ottappalam is set aside and the appellant is directed to appear before the trial court on 30.8.2010 on which date the learned Magistrate is directed to restore his complaint on file in accordance with the procedure and law and to dispose of the same on merit. The Crl.appeal is disposed of accordingly. V.K.MOHANAN, kvm/- JUDGE CRA. 744/10 -:3:- kvm/-