IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRL.A.No. 2115 of 2007 -------------------------------------- ST.597/2006 of JFCM-X, THIRUVANANTHAPURAM .................... APPELLANT/COMPLAINANT: ELBERIN WILFRED, W/O.RAJAN JOSE, SCTNRA-113, CHALAKUZHY ROAD, PATTOM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SABU FRANCIS RESPONDENTS/ACCUSED: 1. SUGATHAN.R., RESEARCH ASSISTANT, DIRECTOR OF ECONOMICS AND STATISTICS, VIKAS BHAVAN, THIRUVANANTHAPURAM NOW RESIDING AT "ANUGRAHA" NRA, 77, T.C.52/2320, NEMOM P.O., THIRUVANANTHAPURAM - PIN 695 020. 2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.C.A.CHACKO BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 2115 of 2007 --------------------------- JUDGMENT This is appeal filed with leave by the complainant in S.T.No.597/06 on the file of the Judicial First Class Magistrate's Court-X, Thiruvananthapuram, assailing the acquittal of the first respondent under Section 256(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. The impugned order, whereby the first respondent was acquitted, reads as follows: “Today, the case is posted for evidence no further time. Today, complainant absent applies. Accused absent. This is a complaint of 2004 and this the 8th time, the case is posted for evidence of the complainant. Last time there was a specific direction to the complainant to present in court today for evidence. Today also the complainant is absent and prays for evidence and hence the CRA 2115/07 2 petition filed by the complainant is rejected. The accused is acquitted and rejected to under Section 256(1) Cr.P.C.” 2. Copy of the order sheet available in the lower court records was perused. It is seen that after recording the plea, the case was being adjourned to 4.11.2005 and thereafter, the case was transferred as per the orders of the Chief Judicial Magistrate, Thiruvananthapuram from the Judicial First Class Magistrate's Court-III to the Judicial First Class Magistrate's Court-X. It is also seen that after receipt of the case in the Court of the Judicial First Class Magistrate-X, there were altogether ten postings in the case and on six postings the appellant/complainant was present. The case was being adjourned for settlement, initially on the submissions of both sides till 30.1.2007. On 30.1.2007 proof affidavit was filed by the appellant and Exhibits P1 to P5 were marked CRA 2115/07 3 and for cross-examination of the appellant, the case was being adjourned for want of time to 2.3.2007. On 2.3.2007, there was no sitting and the case was adjourned by notification to 5.5.2007. On that day also, the appellant was present and the case was being adjourned granting one month's time to settle the matter on the request of the first respondent. Again, on 21.7.2007, the appellant was present and on the request of the first respondent, the case was being adjourned for reporting settlement or for evidence to 25.8.2007 and it was on 25.8.2007 that the impugned order was passed for the reason that the appellant/complainant is absent. It is seen that the accused also was absent on that day. 3. On a perusal of the order sheet of the court below, it is seen that the learned Magistrate has not taken sufficient care to see that the case is disposed of expeditiously. On the other hand, the case was being adjourned for one reason or the CRA 2115/07 4 other and also on the mere submission by the first respondent that he wants to settle the matter. In the circumstances, acquittal of the first respondent under Section 256(1) Cr.P.C. for the reason that on 25.8.2007 when the case stood posted for settlement or evidence, the appellant/ complainant was absent, when the accused also was absent on that day, is not at all justified. In the result, I set aside the impugned order and remit the case back to the court below for disposal afresh according to law. Appellant and the first respondent shall appear in the court below positively on 24.4.2008. Any further failure on the part of the parties to have the case dragged on shall not be entertained by the Magistrate. The appellant shall appear positively on all posting dates of the case hereafter till the case is disposed of by the learned Magistrate. No further summons or notice need not be issued by the court below to the parties, as the counsel for the CRA 2115/07 5 appellant and the first respondent take notice of the posting of the case in the court below on 24.4.2008. Either of the parties can produce a copy of this judgment in the court below to expedite the trial of the case complying with the above directions at the appropriate time. The office will send back the records to the court below forthwith, so as to enable the case being taken up for trial in the court below positively on 24.4.2008. This appeal is, thus, disposed of by way of remand. 19th March, 2008 (K.P.Balachandran, Judge) tkv