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. 2133 of 2008() --------------------------------- AGAINST THE ORDER IN CRL.L.P.19/2008 DATED 10/01/2008 AND JUDGEMENT IN ST.369/2002 DATED 16.11.2006 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR ............................................................................... APPELLANT(S): APPELLANT/COMPLAINANT -------------------------------------------------------------- BIJU.K.SIMON, KUNIYIL HOUSE, MALAYATTOOR.P.O, VIMALAGIRI, ERNAKULAM. BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): ACCUSED & STATE ----------------------------------------------------- 1. M.K.MOHAMMED ALI, PROPRIETOR M.K.K. GRANITES, MOOKKADA HOUSE, VENGAOOR SHAPUMPADI, NEAR ST.JOSEPH'S CLAY WEEDS, KALADY. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR AT HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR. 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.2133 OF 2008 -------------------------- 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 S.T.369/02 of the Judicial First Class Magistrate, Perumbavoor. Due to the absence of the complainant, the acquittal was ordered u/s.256(1) of Cr.P.C. It is stated in the memorandum of appeal that there was no intention of deliberate act to evade the presence, before the court, and really the matter was pending on account of the non-appearance of the accused. After all, it has to be borne in mind that the complainant will be the most interested person to proceed with the case. There is no deliberate misconduct or negligence. I am inclined to grant an opportunity to the complainant, and therefore, the 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 CRL.A.No.2133 OF 2008 2 accordance with law. The complainant shall appear before the court on 3.8.2009 and take steps for issuance of summons to the accused, as he has not appeared before this court. M.N.KRISHNAN, JUDGE ami.