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. 718 of 2008() {C.C.NO.234/2006 OF THE ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... APPELLANT: COMPLAINANT: ---------------------------------------------- UNNI.T., TRIPADAM, PALACE NO.15, INFORT, TRIPUNITHURA. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: STATE AND ACCUSED: ---------------------------------------------------------------- 1. N.RAJESH KUMAR, S/O.NARAYANA PANICKER, 'GOVINDA VILASAM', KAINAKARI VILLAGE, KUTTANAD TALUK, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.SUNIL JACOB JOSE & SRI.M.V.KISHORE KUMAR 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. ------------------------- CRL.A.No.718 of 2008 D ------------------------- Dated this the 27th day of August, 2008. JUDGMENT The complainant, in C.C.No.234/06 on the file of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, is the appellant in this appeal. 2. The calender case arose out of a complaint filed against the 1st respondent alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 3. The complaint was originally filed on 16.2.2005 before the Additional Chief Judicial Magistrate, Ernakulam, which was later transmitted to the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. According to the complainant, his counsel was present on most of the dates including 20.11.2007. As a matter of fact, the complainant was present on 20.11.2007 for tendering evidence and he filed proof affidavit. The case was adjourned to 10.12.2007. But the date of posting was mistakenly noted by himself and his counsel CRL.A.No.718 of 2008 :: 2 :: as 11.12.2007. It seems that on 10.12.2007, the case was called and the complainant was absent. Accordingly, the accused was acquitted. 4. I heard learned counsel for the appellant and perused the records. In the circumstances, the complainant is entitled to another chance to the prosecute the complaint. Having heard the counsel, the appeal is allowed. The order of acquittal is set aside. The complaint is restored to file. The court below shall further proceed with C.C.No.234/06. The complainant and the accused shall appear before the court below on 24.11.2008. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge