IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 CRL.A.No. 2465 of 2007(C) ------------------------------------- CC.NO.32/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PUNALUR .................... APPELLANT/ COMPLAINANT: ------------------------------------------ NAZEERA BEEVI, "S.N.S. MANZIL", SAM NAGAR P.O., KULATHUPUZHA. BY ADV. MR.M.SREEKUMAR. RESPONDENTS/ ACCUSED & STATE: ----------------------------------------------------- 1. BIJU A.S. @ BIJUMON, S/O.ABDUL AZEEZ, "SHAIJU MANZIL", MARKET JUNCTION, ANCHAL P.O., (ANCHAL POLICE STATION). 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. C.M. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 2465 OF 2007 = = = = = = = = = = = = = = = Dated this the 12th day of June, 2009. J U D G M E N T This appeal is preferred against the order of acquittal u/s 256(1) Cr.P.C. passed by the Judicial First Class Magistrate- IV, Punalur in C.C 32/06. It was a case initiated u/s 138 of the Negotiable Instruments Act which ended in acquittal u/s 256(1) Cr.P.C. on account of the absence of the complainant. A reading of the memorandum of appeal would reveal that on 27.9.07 the sureties of the accused remitted the bond amount and thereafter the case was posted to 8.10.07. Thereafter neither the complainant nor the counsel had appeared on 8.10.07 or on 11.10.07 on which days the case was posted which resulted in the acquittal of the accused. It is only a bonafide mistake committed by a counsel and there is no gross negligence or grave misconduct. I feel an opportunity has to be given. Therefore the order of acquittal passed u/s 256(1) Cr.P.C. is set aside and the learned Magistrate is directed to restore the case back to file and proceed in accordance with law after affording opportunity to both the sides to adduce evidence in support of their respective contentions. The complainant is directed to appear before the court below on 28.7.2009 and on his appearance shall take out summons to the accused. M.N. KRISHNAN, JUDGE. ul/-