IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 CRL.A.No. 976 of 2010() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.427/2010 Dated 18/05/2010 STC.3605/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, OTTAPPALAM .................... APPELLANT(S): ---------------------- V.VIJAYASANKAR, S/O.V.NARAYANA EZHUTHACHAN, VAZHAKUNNATH HOUSE, CHERPULASSERY, OTTAPALAM. BY ADVS. MR.V.V.ASOKAN MR.P.P.RAMACHANDRAN RESPONDENT(S): --------------- 1. ALAVI, S/O.KUNCHIPPU, MADATHIPARAMBIL HOUSE, CHERPULASSERY, OTTAPPALAM, 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682018. R2 BY PUBLIC PROSECUTOR MR.C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.Appeal No.976 of 2010 --------------------------------- Dated this the 2nd day of June, 2010 O R D E R The complainant in a prosecution in S.T.C. No.3605/2008 is the appellant and as he is aggrieved by the order dated 28.1.2010 of the Judicial First Class Magistrate, Ottappalam under Sec.256(1) of Cr.P.C. 2. The learned counsel submitted that the complainant was prosecuting the complaint very vigilantly from the date of filing and he had co-operated with the trial of the case. It is also the case of the learned counsel that on the date of the impugned order, the complainant could not appear before the court as he was physically unable to attend due to his ailment. It is further pointed out by the learned counsel that an application was filed to condone the absence of the complainant stating the physical inability, but the learned Magistrate dismissed the application Crl.Appeal No.976 of 2010 : 2 : without referring to the ground raised and without assigning any reason. Therefore, the learned counsel submitted that one more opportunity may be granted to the appellant to prosecute the case on merit. 3. I have considered the submissions made by the learned counsel for the appellant. From the averments contained in the appeal memorandum, it appears that the cheque in question covers an amount of Rs.5,00,000/-. On going through the impugned order of the learned Magistrate, it can be seen that the request to condone his absence was declined but no reason is assigned. It may be true that the complainant was given more than one opportunity to adduce his evidence but that is not a ground to reject the petition to execuse his absence, especially when the same was made on medical ground. The learned counsel for the appellant submitted that the petition to condone his absence was filed by producing the medical certificate. If that be so, the learned Magistrate ought to Crl.Appeal No.976 of 2010 : 3 : have passed an order assigning the reason for not allowing the petition to condone the absence of the complainant. As the cheque in question covers an amount of Rs.5,00,000/-, I am of the view that one more opportunity can be given to the appellant to prosecute case and to have a decision on merit. In the result, this Crl.Appeal is disposed of setting aside the order dated 28.01.2008 in S.T.C. No.3605/2008 of the court of Judicial First Class Magistrate, Ottappalam. Accordingly the appellant/complainant is directed to appear before the court below on 2.7.2010, on which date the learned Magistrate is directed to restoring the complaint on file and to proceed with the same in accordance with procedure and law and dispose of the same on merit. V.K.MOHANAN, JUDGE. Jvt