IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 CRL.A.No. 526 of 2002() ----------------------- CC.1096/2000 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR .................... APPELLANT(S): -------------- THOMAS FRANCIS S/O.FRANCIS, CHITTILAPPILLY, KUNJIPPU HOUSE, LOORDUPURAM, CHEMBUKAVU, THRISSUR. BY ADV. SRI.K.B.MOHANDAS RESPONDENT(S): --------------- 1. M.K.SEBASTIAN, STENOGRAPHER, SOUTH INDIAN BANK, WADAKKANCHERY PRESENTLY WORKING AS STENOGRAPHER, SOUTH INDIAN BANK LTD., BADAGARA BRANCH, KOZHIKODE DISTRICT 2. THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.SHOBY K.FRANCIS FOR R1 PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C.HARI RANI, J. ----------------------------------------------------- CRL.A.No.526 OF 2002 ----------------------------------------------------- DATED THIS THE 3RD DAY OF JUNE, 2009 J U D G M E N T This criminal appeal is preferred by the complainant in C.C.No.1096/2000 on the file of the Judicial First Class Magistrate's Court-III, Thrissur. The offence alleged against the first respondent herein was under Section 138 of the Negotiable Instruments Act. As per order dated 29.4.2002, the learned Magistrate acquitted the accused under Section 256 of Cr.P.C. which is challenged in this appeal. 2. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 3. It is submitted by the learned counsel for the appellant that the order dated 29.4.2002 is illegal, improper and contrary to real facts. According to the learned counsel, though summons was served to the accused before 22.5.2001, he did not appear till 29.4.2002. Without considering the absence of the accused in spite of receipt of summons issued to him, he was acquitted by the lower court which is to be set aside, it is submitted. CRL.A.No.526/02 -2- 4. The learned counsel for the first respondent has opposed the prayer in this appeal and submitted that no medical certificate has been produced by the complainant along with the petition filed on 29.4.2002 to excuse his absence and there is no illegality in the order which is to be sustained. 5. I have perused the records of this case. It would reveal that the complaint filed by the complainant under section 190 Cr.P.C. and 138 of N.I.Act has been taken cognizance by the learned Chief Judicial Magistrate and on 2.9.2000, the case was made over to the Court of Judicial First Class Magistrate-III. It was taken on file as C.C.No.1096/2000 and ordered to issue summons to the accused, whereby the accused was directed to appear before the concerned court on 7.12.2000. On 7.12.2000, the complainant was absent and again directed to issue summons to the accused by registered post and the case was posted to 22.5.2001. In compliance of that order, the complainant paid batta and summons was served to the accused as revealed from the acknowledgement card. On 22.5.2001, the complainant and the accused were absent and both have filed application through their counsel for excusing their absence, and the same CRL.A.No.526/02 -3- were allowed by the learned Magistrate and adjourned the case to 21.11.2001. On that day also both parties were absent and the applications filed by them through their counsel were allowed and posted the case as last chance on 29.4.2002. The proceedings paper would reveal that on 29.4.2002, the following order has been passed. “Both parties absent. Absent petition continuously filed before this court. Parties not interested in the case. Hence petition dismissed. Accused acquitted U/s.256 Cr.P.C.” 6. It is thus revealed from the proceedings paper that till 29.4.2002, the accused did not appear before the concerned court in spite of receipt of summons by him and filed petitions after petitions through his counsel for excusing his absence. The presence of the complainant cannot be insisted and his personal presence was not necessary when the case was posted for the appearance of the accused. Necessary steps to issue summons to the accused has been taken by the complainant which would show that the complainant was interested to proceed with the case. The reason stated by the learned Magistrate that parties not interested in the case is a vague one. It CRL.A.No.526/02 -4- goes without saying that none of the accused in a 138 matter will be interested in proceeding with the case filed by the complainant. The complainant was interested in prosecuting the case and filed application to excuse his absence through his counsel. The records also would reveal that no speaking order has been passed by the learned Magistrate in the application Crl.M.P.No.2491/02, filed by the complainant before that court on 29.4.2002. Thus, it is evident that the learned Magistrate has not applied his mind and dismissed the above case, C.C.No.1096/2000 by signing printed copy of the order, wherein the wordings printed are different one from the wordings written in the proceedings paper. In the above circumstances, to meet the ends of justice, I find that the impugned order is liable to be set aside and a chance should be given to both parties to appear before the lower court. 7. In the result, this appeal is allowed and the order dated 29.4.2002 in C.C.No.1096/2000 is set aside and the case is remanded to the lower court and the learned Magistrate is directed to afford an opportunity to the complainant as well as the accused to adduce evidence in the matter. The court shall dispose of the matter afresh on CRL.A.No.526/02 -5- merits as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. Both parties shall appear before the court below on 24.7.2009. Sd/- M.C.HARI RANI, JUDGE. dsn