IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 CRL.A.No. 90 of 2005() ------------------------------- CC.781/2003 DATED 1.9.04, OF CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD ........................................................................................................ APPELLANT(S): COMPLAINANT: ---------------------------------------------- SRINIVAS. M. SHETTY, 68 YEARS, S/O. LATE MAHALINGA SHETTY, R/AT MUTTA HOUSE, MUTTAGATE, P.O. UPPALA, MANGALPADY, KASARAGOD. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): ACCUSED: ----------------------------------------- 1. DUGGANNA, S/O. VENKAPPA POOJARY D.NO.IV/34/1 IDYA, SURATHKAL, MANGALORE D.K. 2. PULLIKUTTY, S/O. HUSSAIN BEARY, J.M. ROAD, MUKKA, OPPOSITE MUSJID, SURATHKAL, MANGALORE D.K. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADVS. SRI.T.SETHUMADHAVAN FOR R1 & R2 SRI.PUSHPARAJAN KODOTH FOR R1 & R2 SRI.K.JAYESH MOHANKUMAR FOR R1 & R2 SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR, FOR R3. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.90 OF 2005 -------------------------- Dated this the 18th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the order of acquittal in C.C.781/03 of the Chief Judicial Magistrate Court, Kasaragod. The complainant, a 69 year old man, had moved the court for prosecution u/s.138 of Negotiable Instrument Act. It is stated in the memorandum of appeal that he was regularly appearing before the court and on a day when there was no sitting and the case was adjourned by the court, by mistake, the advocate clerk took the date as 24.09.2004 instead of 01.09.2004. This resulted the complainant from appearing before the court. I am inclined to grant an opportunity to the complainant, as he is not guilty of gross negligence or grave misconduct. Therefore, an order of acquittal passed u/s.256(1) Cr.P.C. is set aside and the Court below is directed to restore the case back to file and permit both the complainant and the accused to produce documentary evidence and oral evidence in support of their respective contention and then dispose of the matter in accordance with law. The parties are directed to appear before the Trial Court on 03.08.2009. In case accused does not appear, complainant has to take steps to summon him. M.N.KRISHNAN, JUDGE ami.