IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 CRL.A.No. 679 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.673/2007 Dated 18/09/2007 CC.660/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... APPELLANT: APPELLANT/COMPLAINANT -------------------------------- K.C. SURESH KUMAR MANGALATHU HOUSE (RETNACHELLAM) MALLIKKEEZHU, KAVANAD P.O., KOLLAM-3. BY ADV. SRI.P.PUSHPARAJAN RESPONDENTS: ACCUSED & STATE ---------------------------- 1. S. GOPAKUMAR, CASHIER STATE BANK OF INDIA, THANGASSERI, KOLLAM NOW RESIDING AT VAYAKKAL VADAKKATHIL H.NO.114, KAVANAD NAGAR, KAVANAD P.O. KOLLAM-3. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL FOR R1 PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.679 of 2008 ---------------------------------------- Dated this the 9th day of June 2008 J U D G M E N T The appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. When the matter came up for recording evidence on 28/4/2006, the appellant/accused was absent and accordingly powers under Section 256 Cr.P.C were invoked. The complaint was dismissed and the accused was acquitted under Section 256(1) Cr.P.C. 2. The learned counsel for the appellant submits that the matter was posted for evidence for the first time on 28/4/2006. On that day, the complainant was represented. Adjournment was sought on valid grounds. The same was turned down and the complaint was dismissed. I have perused the order sheet. I find merit in the submission of the learned counsel for the petitioner. The respondent has entered appearance. Notwithstanding the opposition of the learned counsel for the respondent, I am satisfied, on a perusal of the order sheet on the dates 06/02/2006, 17/3/2006 and 28/4/2006 that the order dated 28/4/2006 deserves to be set aside. Crl.M.C.No.679/08 2 3. In the result, a) This appeal is allowed. b) Impugned order is set aside. c) The learned Magistrate is directed to dispose of the case afresh and in accordance with law. 4. Parties shall appear before the learned Magistrate on 7/7/2008 without waiting for any further instructions. The complainant shall file the chief affidavit also before that date with notice to the learned counsel for the accused. (R.BASANT, JUDGE) jsr Crl.M.C.No.679/08 3 Crl.M.C.No.679/08 4 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006