IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRL.A.No. 310 of 2008() {C.C.NO.2594/2003 OF THE JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT: COMPLAINANT ---------------------------------------------- M/S.MUBARAK METALS, JEWS STREET, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER MOOSAKUTTY E.K., S/O.KUNJU MUHAMMED, EDATHARA (H), AROOR. BY ADV. SRI.ABRAHAM JOHN SMT.SUJA SURENDRAN RESPONDENTS: ACCUSED AND STATE -------------------------------------------------------------- 1. JOSSY THOMAS, (PROPRIETOR OF ROYAL GREEN INDUSTRIES JOSSY THOMAS & CO.) MULLAPPALLY BUILDINGS, EAST OF KSRTC BUS STAND, CHERTHALA. 2. STATE OF KERALA BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.BOBBY JOHN R2 BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CR.A.No.310 of 2008 ------------------------- Dated this the 27th day of August, 2008. JUDGMENT The complainant in C.C.No.2594/03 on the files of the Judicial Magistrate of the First Class-I, Kochi-5, is the appellant herein. 2. The calender case arose out of a complaint filed by the complainant alleging an offence under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 3. Apparently, the case was instituted before the Chief Judicial Magistrate, Ernakulam. Subsequently, by an administrative order, the case was made over to the file of the Judicial Magistrate of the First Class-I, Kochi-5. Thereafter, it was posted on more than one occasion for settlement. It seems that the case was posted for evidence on 23.1.2007. But, it was mistakenly noted as 23.2.2007. Resultantly, the complainant was absent on 23.1.2007. The accused was acquitted under Section 256(1) of the Code of Criminal Procedure. Hence this appeal. CR.A.No.310 of 2008 :: 2 :: 4. I heard counsel for the appellant and I have gone through the records in the case. In my view, the appellant must be given another opportunity to prosecute the case. Accordingly, the appeal is allowed and the order of acquittal is set aside. The complaint is restored to file. Learned Magistrate shall further proceed with C.C.No.2594/03. The parties are directed to appear on 17.11.2008. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge