IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 CRL.A.No.35 of 2007 (D) ----------------------------- ORDER IN CRL.L.P.502/2006 ST.1085/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... APPELLANT: COMPLAINANT -------------------------------- DR.DELISLE PERPETUA D'CRUZ, DEYODAT, THANGASERI P.O., PUNNATHALA, KOLLAM. BY ADV. SRI.S.SUNIL NARAYANAN RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. DR.RAMACHANDRAN PILLAI, JYOTHI, T.K.M.C.P.O., KARICODU, KOLLAM DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.SANTHOSH KUMAR PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.35 of 2007 ------------------------------------------------ Dated this the 16th day of January, 2008 JUDGMENT This appeal is filed with leave against acquittal of the first respondent under Section 256(1) Cr.P.C in a complaint filed by the appellant under Section 138 of the N.I. Act as S.T.1085/05. 2. It is seen from the order impugned that the case was originally filed before the Chief Judicial Magistrate's Court, Kollam and was later being made over to the Judicial First Class Magistrate's Court-II, Kollam and the learned Magistrate was acquitting the accused under Section 256(1) Cr.P.C as the complainant was absent and there was no representation. It is not clear from the order assailed as to whether the parties had knowledge of the transfer of the case from the Chief Judicial Magistrate's Court to the Court of Judicial First Class Magistrate. The order Crl. Appeal No.35 of 2007 -2- also does not show that the absence of the complainant disabled the court from proceeding further and make progress in the trial of the case. The cheque, dishonour of which is complained of is for an amount of Rs.1 lakh. I am of the view that an opportunity has to be afforded to the appellant to have a trial of the case conducted on merits in the circumstances. 3. In the result, I set aside the order assailed in this appeal and remit the case back to the court of the Judicial First Class Magistrate-II, Kollam for disposal afresh according to law. Though the first respondent has entered appearance before this Court through a lawyer, the lawyer has not appeared and there is not even any representation on his behalf. The appellant shall appear in the court below positively on 20/02/08 and steps shall be taken for summons being issued to the first respondent/accused afresh so as to Crl. Appeal No.35 of 2007 -3- enable fresh summons being issued to him. 4. This appeal is thus, allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-