IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 CRL.A.No. 548 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.188/2008 Dated 06/03/2008 ST.1634/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT: -------------------- KRISHNANKUTTY,S/O. SANKUNNI NAIR, KRISHNA, ODAMPATH, MANIYANCODE POST, KALPETTA, NORTH WAYANAD. BY ADV. SRI.E.R.VENKATESWARAN SRI.R.SREEHARI RESPONDENTS: -------------------------- 1. DR.ALIN,S/O. MOIDEEN, PRAKRETHI GRA, KRIPA HOSPITAL ROAD, KALPETTA 673 121. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss V. GIRI, J. ------------------------------- Crl.Appeal.NO. 548 of 2008 --------------------------------- Dated this the 19th day of August, 2008. JUDGMENT The complainant in ST.No.1634 on the file of the JFCM Court Sultan Bathery is the appellant herein. Apparently a complaint was originally filed on 8.5.2006 before the Chief Judicial Magistrate Court, Kalpetta and later was made over to the JFCM Court, Sultan Bathery. There were several postings before the Magistrate and going by the statement contained in the petition for leave as also the appeal memorandum, the complainant was present on those postings. The trial of the accused also commenced. The complainant's evidence was closed and the accused was questioned under section 313 of the Cr.PC. It seems that on 14.2.2007 the case was posted for hearing, the accused filed an application for reopening the case and the same was allowed on terms. Thereafter the matter stood adjourned on more than one occasion essentially because of the change of the Presiding Officer by the time. It seems that the posting of the case on 30.10.2007 was wrongly noted by the CRA.548 /2008 2 Clerk as 12.11.2007. The Complainant was absent on that day. The court below proceeded to pass the impugned order acquitting the accused under section 256(i) of the Cr.P.C. The same has been challenged in this writ petition. 2. From the facts narrated above and after hearing learned counsel for the appellant, I am satisfied that there has been no consistent default on the part of the complainant and therefore the absence on 30.10.2007 seems to be inadvertent. The order of acquittal is liable to be set aside. It is accordingly done. The appeal is allowed. The complaint is restored to file. The court below is directed to further proceed with ST.No.1634/2005 in accordance with law. The parties will appear before the court below on 13.10.2008. The LCR shall be transmitted back to the court below. V. GIRI, JUDGE. Pmn/ CRA.548 /2008 3