IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRL.A.No. 152 of 2007() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.545/2006 Dated 18/10/2006 CC NO.296/2005 OF JUDICIAL FIRST CLASS MAGISTRATE -IV, NEYYATTINKARA .................... APPELLANT/COMPLAINANT: ------------------------------------------ BALACHANDRAN NAIR, S/O.MADHAVAN PILLAI VAZHAVIPPI VEEDU, NEDIYANCODE, PARASSUVAIKKAL P.O., NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENTS/ACCUSED & STATE: ---------------------------------------------------- 1. PURUSHOTHAMAN, `SREE KRISHNANJALI' MALAYADI, MALAYADI P.O., KANNYAKUMARI DISTRICT, TAMILNADU. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.A.No.152 of 2007 D ------------------------- Dated this the 4th day of September, 2008. JUDGMENT The complainant, in C.C.No.295/05 on the file of the Judicial Magistrate of the First Class-IV, Neyyattinkara, is the appellant in this appeal. 2. The complaint was filed against the 1st respondent alleging that he had failed to make the payment, after having issued a cheque in discharge of his liability and thereby he committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 3. Apparently, noting that the complainant was absent on three posting dates, the court below proceeded to acquit the accused under Section 256(1) of the Code of Criminal Procedure on 18.09.2006. The said order has been challenged in this appeal. 4. Though served, the accused has not entered appearance in this case. I heard learned counsel for the appellant and I have perused the records. CRL.A.No.152 of 2007 :: 2 :: 5. I find no reason not to accept the explanation offered by the complainant. The complainant was not present in court on three occasions, apparently under the impression that the matter will be settled for which a submission had already been made before the court below. I am of the view that the complainant is entitled to one more opportunity to prosecute the appeal. Accordingly, the appeal is allowed. The order of acquittal is set aside. The complaint is restored to file. The court below shall further proceed with 295/05. The complainant shall appear before the court below on 24.11.2008. The court below shall summon the accused and then further proceed with the matter. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge