IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY WEDNESDAY, THE 21ST FEBRUARY 2007 / 2ND PHALGUNA 1928 CRL.A.No. 531 of 2000() ------------------------------- ST.1432/1999 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR DT.24.5.2000. .................... APPELLANT: COMPLAINANT ----------------- DAVIS, S/O. THARAKAN DEVASSY, ARIYANNUR DESOM, KANDANASSERY VILLAGE, TALAPPILLY. BY ADV. SRI.P.VIJAYA BHANU RESPONDENTS: ACCUSED & STATE -------------------- 1. LISSIYAMA MATHEW, W/O.KANNAMPILLY SUNNY, KANATTUKARA DESOM, KANATTUKARA P.O., AYYANTHOLE VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSHKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY, J. --------------------------- Crl. Appeal No. 531 of 2000 --------------------------- Dated this the 21st day of February, 2007 Judgment Appellant filed a complaint under section 138 of the Negotiable Instruments Act stating that cheque issued by the first respondent was dishonoured for insufficiency of funds. Originally, the case was posted before the Chief Judicial Magistrate, Thrissur. Thereafter, it was made over to Judicial First Class Magistrate's Court-III, Thrissur. According to the appellant, he was present on eleven posting dates, but, accused was never present. On 24.5.2000, when the case was posted, even though appellant and counsel were present, due to heavy rush, they could not enter inside the court and the accused was acquitted for absence of the complainant. When the accused was not present, presence of the complainant was absolutely not necessary. The impugned order is a stereo-typed order without application of mind. Even though accused can be acquitted under section 256 (1) of the Code of Criminal Procedure for the absence of the complainant, it should not be done mechanically. On the facts and circumstances of the case, the impugned order is set aside and the matter is remanded. The complainant shall appear before the trial Crl.A.No. 531/2000 2 court on 26.3.2007. Notice sent by this court was evaded. Anyway, since notice was not served, fresh steps should be taken by the complainant for service of notice to the first respondent/accused. Appeal is allowed by way of remand. J.B. KOSHY (JUDGE) vaa Crl.A.No. 531/2000 3 J.B.Koshy, J. ----------------------- Crl. A. No.531 of 2000 ----------------------- Judgment 21-2-2007