IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 CRL.A.No. 1901 of 2011 ------------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.939/2011 Dated 20/10/2011 ST.898/2006 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE ..................................................... .................... PETITIONER/COMPLAINANT: ------------------------------------------ P.PRAMOD,S/O.BHASKARAN,PUNATHIL, ARAKKINAR P.O.,KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): ACCUSED & STATE: ------------------------------------------------------ 1. M.P.HAMSAKOYA,S/O.ALI HASSAN, AZMABI MANZIL,CHACKEERICKAL PARAMBA, ARAKKINAR P.O.-KOZHIKODE. 2. STATE OF KERALA,REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU V.K.MOHANAN, J. ------------------------------- Crl.A.No.1901 of 2011 ------------------------------- Dated this the 4th day of November, 2011. J U D G M E N T The complainant in a prosecution for an offence under Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 25.8.2008 in S.T.No.898 of 2006 in the court of Judicial First Class Magistrate-V, Kozhikode, by which the learned Magistrate acquitted the accused, in his complaint, under Section 256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that, though the accused initially appeared and recorded his plea, subsequently he had absconded and when the trial court passed the impugned order, the accused was not present and he was absconding and therefore, according to the learned counsel even if the complainant was present, there would not have been any fruitful turn out. Thus 2 Crl.A.No.1901 of 2011 according to the learned counsel, the order of the learned Magistrate is illegal and one more opportunity may be given to the complainant to prosecute the matter on merit. 3. It is relevant to note that, no material is produced to substantiate the above submission made by the learned counsel. However, it appears that the court has already taken cognizance for the offence punishable under Section 138 of Negotiable Instruments Act, based upon the complaint preferred by the appellant, where the dishonoured cheque covers an amount of Rs.40,000/-. But there is no decision on merit. In the operative portion of the order though it is stated that, 'the complainant is absent', there is no whisper about the accused that whether he is present or represented. Having regard to the above facts and circumstances, I am of the view that, the petitioner can be granted one more 3 Crl.A.No.1901 of 2011 opportunity to prosecute the matter on merit. In the result, this appeal is disposed of setting aside the order dated 25.8.2008 in S.T.No.898 of 2006 in the court of Judicial First Class Magistrate-V, Kozhikode. Accordingly, the complainant is directed to appear before the trial court on 7.12.2011, on which date the learned Magistrate is directed to restore the complaint on file and proceed in accordance with the procedure and law and dispose the same on merit. As the matter pertains to the year 2006, the learned Magistrate is directed to expedite the trial and dispose of the case as expeditiously as possible. V.K.MOHANAN, Judge ami/