IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 CRL.A.No. 1363 of 2010() ------------------------ ( ST.1580/2008 of 2008 OF JUDL.FIRST CLASS MAISTRATE COURT-VI, ERNAKULAM) ............................................................. APPELLANT(S): COMPLAINANT ------------------------- K.G.SETHUMADHAVAN,KOLAKKANDATHIL HOUSE, VYTTILA PO, KOCHI-19. BY ADV. SRI.ABRAHAM K.JOHN RESPONDENT(S): ACCUSED ---------------------- 1. ANILKUMAR.N, ANIL BHAVAN, NANDIYODU, PACHA PO,THIRUVANANTHAPURAM DISTRICT. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A No.1363 of 2010 ---------------------------------------- Dated the 29th Day of July, 2010 JUDGMENT Aggrieved by the order of acquittal recorded under section 256(1) of Cr.P.C by the Judicial First Class Magistrate Court-VI, Ernakulam, in S.T.No.1580/2008, which is a case instituted upon the complaint preferred by the appellant, this appeal is preferred. 2. The learned counsel for the appellant submitted that though the case is pertained to the year 2008, the accused entered appearance only on 29.7.2009 and the case was adjourned to 31.7.2009 on which date also the accused was absent. The learned counsel for the appellant submitted that though the accused appeared on 29.7.2009, his plea was not recorded on that day and he was not enlarged on bail. Without resorting to the above proceedings, the case was adjourned to 31.7.2009. The above proceedings adopted by the learned Magistrate appears to be not correct, however, the subject matter of the appeal is not the correctness of Crl.A.1363 of 2010 -:2:- the procedure adopted by the Magistrate. From the above facts it appears that even if the complainant was present on that day, there would not be any fruitful turn out. This Court in the decision in Don Bosco v. Partech Computers Ltd. (2005(2) KLT 1003) wherein it is held that when the case was called, the presence of the complainant was not necessary, the complaint should not be dismissed on that ground. 3. In the light of the above factual and legal position, the learned Magistrate ought to have granted opportunity to the complainant, especially, when the cheque in question covers an amount of Rs.1,00,000/-. Therefore, I am not inclined to approve the procedure adopted by the court below. In the result, this appeal is disposed of setting aside the order dated 31.7.2009 in S.T.No.1580/2008 of the court of the Judicial First Class Magistrate court No.VI, Ernakulam. Accordingly, the appellant is directed to appear before the trial court on 31.8.2010 on which date the learned Magistrate is directed to restore the complaint on file and proceed with Crl.A.1363 of 2010 -:3:- the same in accordance with the procedure and law and dispose of it on merit. This Crl.Appeal is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Crl.A.1363 of 2010 -:4:- O.P.No. JUDGMENT Dated:..