IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRL.A.No. 446 of 2007() ----------------------- CC.638/2004 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... APPELLANT: COMPLAINANT ---------------------- P.V.SANTHOSH, PARACKAL HOUSE, MALLOOSSERY P.O., KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: ACCUSED/NOT PARTY ------------------------------ 1. VALSAMMA.M.K., KURAVANTHARA HOUSE, KILIROOR NORTH P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- Crl.A.446/2007 -------------------- Dated this the 4th day of September, 2008 JUDGMENT The complainant in C.C.No.638/2004 on the files of the Judicial First Class Magistrate-III, Kottayam, is the appellant herein. The complaint was filed alleging that the accused had committed an offence punishable under Section 138 of the Negotiable Instruments Act. It seems that after the learned Magistrate had taken cognizance of the offence, the case was being adjourned from time to time for the appearance of the accused. After the issuance of non bailable warrant, the complaint was adjourned to 30.5.2006, 26.8.2006, 20.9.2006, 25.10.2006 and 14.11.2006. It is the case of the complainant that he was present on all these days. But on 19.12.2006, the complainant's counsel could not be present as he was engaged in another Court. But he had made arrangements through another Advocate to make a representation on behalf of the complainant. But there was some omission and this resulted in the acquittal of the accused under Section 256(1) of Cr.P.C. Crl.A.446/2007 2 2. Though served, there is no appearance on behalf of the accused. 3. Having heard learned counsel for the appellant Mr.Mathew John and having perused the records, I am of the view that the complainant is entitled to another chance to prosecute the complaint. 4. Accordingly the appeal is allowed. Order of acquittal is set aside and the complaint is restored to file. Court below shall further proceed with C.C.No.638/2004 in accordance with law. Parties shall appear before the Court below on 17.11.2008. V.GIRI, Judge mrcs