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. 1243 of 2007() ------------------------ AGAINST THE ORDER IN CRLP.229/2007 Dated 12/04/2007 ST.2354/2006 of JUDL. MAGIST. OF FIRST CLASS-IV (MOBILE), TRIVANDRUM .................... APPELLANT: COMPLAINANT: ----------------------- S.GANAPATHY, S/O.S.CHUNDALAI MUTHU, T.C.13/1415, SRRA 159, CHARUVILAKATHU VEEDU, KUMARAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENTS: ACCUSED AND STATE; ------------------------------- 1. G.PRASANNA, 17-198, RAJEEV NAGAR, NGO QUARTERS, KARAMANA, MELARANNOOR, THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.RAMASWAMY PILLAI FOR R1 SRI.KOMALA KUMAR FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.1243/2007 -------------------- Dated this the 27th day of August, 2008 JUDGMENT The complainant in S.T.No.2354/2006 on the files of the Judicial First Class Magistrate-IV (Mobile Court), Thiruvananthapuram, is the appellant herein. The complaint was lodged under Section 138 of the Negotiable Instruments Act. According to the complainant, first respondent borrowed an amount of Rs.3,50,000/- and issued a cheque in discharge of the liability. When the cheque was presented for encashment, it was returned for insufficiency of funds. The case was posted for evidence on 14.12.2005. The complainant was present, but as there was no sitting on that day, it was adjourned to 2.3.2006. On that day, the case was transferred to Judicial First Class Magistrate-IV and then posted to 31.5.2006. It was then posted on several days but there was no sitting and finally posted to 13.10.2006. It seems that the complainant was laid up due to viral fever from 5.10.2006 and therefore, neither was the appellant present on 13.10.2006 nor could he give instructions to Crl.A.1243/2007 2 the counsel. Accordingly he was absent. The Court below proceeded to acquit the accused under Section 256(1) of Cr.P.C. Same has been challenged in the appeal. 2. Having heard learned counsel on either side and in the facts and circumstances narrated above, I am of the view that the complainant should be given another chance to prosecute the complaint. 3. Accordingly the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. The Court below shall further proceed with S.T.No.2354/2006 in accordance with law. Parties shall appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs