IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 CRL.A.No.395 of 2007 (D) ------------------------------ AGAINST THE ORDER IN CRL.L.P.65/2007 Dated 02/02/2007 CC.509/2005 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKKARA .................... APPELLANT: COMPLAINANT: --------------------------------- SUKUMARAN, SHEEJALAYAM, ERUMAKUZHI MURI, PALAMEL VILLAGE. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMBIL RESPONDENTS: STATE & ACCUSED ---------------------------------------- 1. STATE OF KERALA, REP.BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.SREEDHARAN, SREEJU BHVAN, CHUNNAKARA SOUTH, CHARUMOOD P.O. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU SRI.P.SREEKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT COST HAS BEEN DEPOSITED AS ORDERED BY THIS COURT VIDE ORDER DT.03/01/08. HENCE, THE REMAND ORDERED BY THIS COURT VIDE ORDER DT.03/01/08 HAS BECOME OPERATIVE. PARTIES ARE DIRECTED TO APPEAR IN THE COURT BELOW POSITIVELY ON 18/02/08. THE COURT BELOW SHALL DISPOSE OF THE CASE WITHIN THREE MONTHS THEREFROM. IT IS MADE CLEAR THAT FRESH SUMMONS NEED NOT BE ISSUED TO THE ACCUSED OR TO THE COMPLAINANT, AS THEIR COUNSEL TAKE NOTICE OF THE POSTING ON 18/02/08. Sd/- K.P.BALACHANDRAN, JUDGE 15/01/08 /True Copy/ P. A to Judge K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.395 of 2007 ------------------------------------------------ Dated this the 3rd day of January, 2008 ORDER The appellant is the complainant in C.C.509/05 on the file of the Judicial First Class Magistrate's Court, Mavelikara, a complaint filed under Section 138 of the N.I. Act. The complaint was dismissed by the learned Magistrate under Section 256(1) of the Cr.P.C and hence, this appeal with leave by the complainant. 2. The impugned order is dt.30/11/06. The relevant portion of the order shows that on 16/10/06 when the case was taken up for evidence, both parties agreed to have the matter referred to Adalath and it was accordingly referred to Adalath. However, the appellant did not appear before the Adalath. It had been ordered by the Magistrate that in case the matter is not settled at the Adalath, Crl. Appeal No.395 of 2007 -2- the case will be taken up on 30/11/06. It was for the reason that on 30/11/06 also the appellant/complainant did not appear and he was not even represented by his counsel that the accused was acquitted under Section 256(1) Cr.P.C. 3. Counsel submits that the complainant was not aware that evidence will be adduced on 30/11/06 in case the matter is not settled at the Adalath. Even assuming that such an excuse is tenable from the side of the complainant, irresponsibility of the lawyer in not having appeared and represented the case cannot be taken so lightly. The learned Magistrate, in the circumstances, had no other course but to acquit the accused. However, I am not of the view that without giving an opportunity to the appellant to substantiate his case, the case has to be disposed of acquitting the accused. Hence, a remand of the case to the court below Crl. Appeal No.395 of 2007 -3- for disposal afresh for the purpose of trial requires to be made. But all the same, considering the entire circumstances of the case, I am not of the view that a remand can be ordered except on heavy terms. 4. In the result, I order that this appeal shall stand allowed and the case remanded to the court below for trial and disposal afresh in case an amount of Rs.4,000/- (Rupees Four thousand only) is deposited by way of cost to the credit of the Kerala Legal Services Authority and receipt is produced positively on or before 14/01/08. In case of failure, this appeal shall stand dismissed. 5. Post on 15/01/08 to ascertain if cost is deposited and receipt is produced. K.P.BALACHANDRAN, JUDGE kns/-