IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 CRL.A.No. 2076 of 2007() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1040/2007 Dated 17/10/2007 CC.947/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT(S): COMPLAINANT ------------------------- M/S.BHARATH SAW MILLS & INDUSTRIES, THAMMANAM, PALARIVATTOM, KOCHI, REP. BY ITS MANAGING PARTNER, ROSHY J.PALLAN. BY ADVS.MR.C.A.CHACKO SMT.C.M.CHARISMA MR.N.A.SHAFEEK RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. C.S.JOHN, PROPRIETOR, GRADE A, INTERIOR, DOOR NO.XXXIV/2352 B, DEVAKI TOWER, MAMANGALAM, KOCHI. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.2076 OF 2007 ------------------------------ Dated this the 3rd day of July, 2009 JUDGMENT This is an appeal preferred against the order of acquittal passed under Section 256(1) of the Cr.P.C in a Section 138 matter by the Judicial Magistrate of First Class-II, Ernakulam. The accused was acquitted in the absence of the complainant. A perusal of the appeal memorandum would reveal that the accused in spite of notice did not attend the court and so, coercive steps to get him by issuance of non-bailable warrant was issued. The complainant was directed to take out steps for proper service. He did not appear before the court and therefore, the case ended in acquittal or in other words, it has to be stated that the accused did not enter appearance before the court at all. Therefore, there is no necessity to hear him at this stage. It is submitted that on account of the unavoidable circumstance, the counsel was not able to attend the court. In think, an opportunity has to be given. There is no gross misconduct or grave negligence. Therefore, the order of acquittal passed under Section 256(1) Cr.P.C is set aside and 2 CRL.A.NO.2076/07 the learned Magistrate is directed to restore the case back to file and then dispose of the matter in accordance with law after affording equal opportunities to the complainant as well as the accused to adduce both oral and documentary evidence in support of their respective contentions. The complainant shall appear before the court below on 20.8.2009 and then take out steps to complete service on the accused. M.N. KRISHNAN, JUDGE cl 3 CRL.A.NO.2076/07 4 CRL.A.NO.2076/07