IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRL.A.No. 374 of 2008() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1045/2007 Dated 17/10/2007 CC.53/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... APPELLANT: COMPLAINANT: ----------------------- GEORGE VARGHESE, MANNIL PUTHENVEEDU, ANGADICKAL SOUTH P.O., CHENGANNUR. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ACCUSED AND THE STATE: ------------------------ 1. CHANDRA KUMAR, KURUKKAN VILAKOM, VELLANADU P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEARLA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN,J. ========================= CRL.APPEAL NO.374 OF 2008 ========================= Dated this the 1st day of April 2008 JUDGMENT Heard the counsel for the appellant and the Public Prosecutor for the second respondent. 2. This appeal is filed by the complainant in C.C.53/2001 assailing the acquittal of the first respondent of offence under Section 138 of the Negotiable Instruments Act vide Section 256(1) of the Criminal Procedure Code. The first respondent was acquitted under Section 256(1) and the case was disposed of by the Magistrate for the reason that the appellant and counsel were absent and no steps were taken for issuance of summons to the first respondent/accused. The course that was open to the Magistrate in that event was to dismiss the complaint under Section 204(4) of the Criminal Procedure Code and not to acquit the accused under Section 256(1) of the Criminal Procedure Code and to CRL.A.374/2008 2 dispose of the case. The disposal by the court below of the case acquitting the accused of offence under Section 138 of the Negotiable Instruments Act is hence not legal and deserves to be set aside. 3. In the result, allowing this appeal, I set aside the order of acquittal passed by the learned Magistrate acquitting the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act and remit the case back to the court below for disposal afresh, according to law. 4. It is noticed that the case is one of the year 2001 and the leave petition was filed before this Court on 11.4.2002. This case was lying over for the last six years before this Court on account of laches on the part of the appellant. The appellant shall appear in the court below positively on 30.4.2008 and shall continue to be present on all posting dates of the case hereafter and shall comply with all directions issued by the court below to take out summons or warrant, as the case may be, to procure the presence of the first respondent. Any failure on the part of CRL.A.374/2008 3 the appellant to comply with the directions of the court below, without any defect, shall be at his own risk and he shall not expect any further leniency either from the court below or from this Court. This appeal is thus disposed of by way of remand. The Registry shall return the LCR to the Court below forthwith so as to enable the court below to take up the case on 30.4.2008. K.P.BALACHANDRAN, JUDGE css/