IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.A.No. 2442 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.650/2006 Dated 07/12/2006 ST.303/2006 of JUDICIAL FIRST CLASS MAGISTRATE VIII, THIRUVANANTHAPURAM .................... APPELLANT(S): COMPLAINANT ------------------------- ANILKUMAR V.S., GURUKULAM, SUKUMARA SADANAM, PALLICHAL P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY SRI.HARIKUMAR.S. RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. H.GANESHAN, DTP OPERATOR, IPP PRESS, KHRWC, RED CROSS ROAD, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 2442 OF 2006 ------------------------------- Dated this the 22nd September, 2008. JUDGMENT This is an appeal filed by the complainant in ST 393/06, challenging the order of acquittal passed by the court below by its order dated 28.9.2006 under Section 256(1) Cr.P.C. 2. The above case is instituted at the instance of the appellant-complainant under Section 138 of the Negotiable Instruments Act connected with dishonour of a cheque dated 17.2.2004 for an amount of Rs.3,50,000/-. Originally the case was filed before the Judicial First Class Magistrate-II, Thiruvananthapuram wherein ST No: 530/2004 was instituted and subsequently the same was transferred to Judicial First Class Magistrate-VIII, Thiruvananthapuram on 22.2.2006 and was renumbered as ST 393/06. In that court on appearance of the accused the plea was recorded on 17.5.2006 on which date the complainant was present. Subsequently the case was adjourned to 3.6.2006 for evidence. Though the complainant was present on 3.6.2006 the accused was absent and NBW was issued against him Crl. Appeal 2442/06 2 and the case was adjourned to 24.6.2006. On 24.6.2006 by allowing the application filed on behalf of the complainant his presence was exempted and adjourned the case to 18.8.2006, on which date the complainant was present. But the case was adjourned to 29.8.2006 as the complainant was not ready to go with the evidence on 18.8.2006. It is the case of the appellant that on 18.8.2006 the case was adjourned to 29.8.2006 and from 29.8.2006 to 28.9.2006 and on those dates he could not be present in the court because it is mistakenly noted down the next posting date as 28.10.2006. The explanation given for the mistake crept in noting the date that usually the case being adjourned and posted after a period of two months. So the complainant and his counsel were under the impression that the case will be taken on 28.10.2006 and accordingly it is claimed that they were present in the court on 28.10.2006. It is submitted that only on 28.10.2006 they came to know that the case was already called on 28.9.2006 and the same was disposed of on that date. 3. In support of the plea to set aside the order of acquittal passed under Section 256(1) Cr.P.C the appellant placed reliance on the decisions reported in Santhosh and others v. State of Kerala and Crl. Appeal 2442/06 3 another {1985 CRLJ 756 (Kerala High Court)} , Associated Cement Co. Ltd. V. Keshvanand (1998 S.C.596) and Mohd. Azeem v. A.Venkatesh and another {(2002) 7 SCC 726}. According to me the above decisions are not attracted in the present case since in the present case as evidenced by the order issued by the court below on 29.8.2006 the absence of the complainant has been specifically noted and posted the case for disposal on 28.9.2006. Hence, on 28.9.2006 the case was taken for disposal on which date also complainant was not present. Normally, even though the adjournment of the case was pronounced in the open court the same will be endorsed in the 'A' diary of the case from where the actual date of posting can be noted down. Therefore it cannot be said that the order passed by the court below is absolutely illegal or irregular and, therefore, the reason given by the appellant in this appeal to interfere with the order of the court below is not satisfactory. 4. Going by the order issued by the court below it can be seen that cognizance was taken and transferred the case to the present court only on 22.2.2006 and thereafter though not regular, the complainant was present. Going by the order issued by the court below it cannot be said that the complainant was Crl. Appeal 2442/06 4 continuously absent and negligent in prosecuting the appeal. It is also relevant to note that the amount involved as per the cheque in question would come to the tune of Rs.3,50,000/- and therefore, according to me, interest of justice demands to have a decision after considering the matter on merit, but of course subject to terms. Therefore the order impugned is liable to be set aside. In the result this appeal is allowed on condition that the appellant deposits a sum of Rs.3,500/- (Rupees three thousand five hundred only) in the court below which shall be paid into State exchequer. The court below is directed to take up the complaint on file and to dispose of the same on merit in accordance with law, on depositing the amount as aforesaid. The parties are directed to appear before the court below on 31.10.2006. V.K.MOHANAN JUDGE jj