IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 CRL.A.No. 710 of 2010() ---------------------------------- CC.2476/2009 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM CC. NO.2476/2009 OF ADDL. CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM. .................... APPELLANT(S): COMPLAINANT ------------------------- K.P.ANILKUMAR AGED 37 YEARS, S/O.PRABHAKARAN, KARIPPUZHAYIL HOUSE, EROOR P.O., TRIPUNITHURA, ERNAKULAM DISTRICT. BY ADV. SRI.N.G.SUNIL RESPONDENT(S): ACCUSED & STATE --------------------------- 1. SHIBU,S/O. PATHROSE, AGED 39 YEARS, CHALUNKAL HOUSE, VADACODE, KANAGARAPPADY, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.VENUGOPAL M.R. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.710 of 2010 ------------------------------- Dated this the 9th day of April, 2010. J U D G M E N T Challenging the order dated 5.3.2010 in C.C.No.2476/09 of the Court of Addl.Chief Judicial Magistrate, Ernakulam, the complainant in a prosecution for the offence u/s.138 of Negotiable Instrument Act, preferred this appeal against the order of acquittal recorded u/s.256(1) of Cr.P.C. 2. Further the learned counsel submitted that, the complaint was filed on 20.8.2009 and a summons to the accused was issued on 18.11.2009 but the accused had not entered appearance and therefore on 22.1.2010, the court below ordered steps against the accused and the case was adjourned to 5.3.2010. According to the learned counsel, because of the strike on that day, neither the complainant nor his counsel could reach the court at the time of the roaster call and it was under the above circumstances, the impugned order was issued by the learned Magistrate. Crl. APPEAL No.710 of 2010 2 3. Going by the appeal memorandum, it appears that the cheque in question cover for an amount of Rs.25,000/- and though cognizance was taken, there is no decision on merit, since the order of acquittal was recorded u/s.256(1) of Cr.P.C. From the facts revealed from the appeal memorandum and on the basis of the submission made by the learned counsel, it appears that though the complainant and his counsel was absent on 5.3.2010, the trial could not be proceeded as the accused had not entered appearance and therefore it was incumbent upon the learned Magistrate to adjourn the case, so as to secure the presence of the accused and to proceed further in accordance with law and procedure. It is true that there was no representation but the absence of the complainant was not indispensable in the above factual background of the case, the learned Magistrate ought not have issued the order, especially, in the light of the decisions reported in Alice George Vs. Dy.Superintendent of Police [2003(1) KLT 339] and Don Bosco Vs. Partech Computers Ltd. [2005(2) KLT 1003]. Crl. APPEAL No.710 of 2010 3 In the result, this Crl.appeal is disposed of setting aside the order dated 5.3.2010 of the Court of Addl. Chief Judicial Magistrate in C.C.No.2476/09. Accordingly, the appellant/ complainant is directed to appear before the Court below on 10.5.2010 on which date, the learned Magistrate is directed to restore the complaint on file and to proceed in accordance with law and procedure and to dispose the complaint on merit. V.K.MOHANAN, Judge. ami/