IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 CRL.A.No. 179 of 2008() {C.C.NO.647/2000 OF THE JDUL.MAGISTRATE OF FIRST CLASS, RAMANKARI APPELLANT: COMPLAINANT: EASWARAN NAMBOOTHIRI, KODAIKKATTU MADOM, NEDUMUDI PANCHAYATH, NEDUMUDI VILLAGE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: ACCUSED: 1. THE KAIRALI MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LTD. NO. A-986, ALAPPUZHA REPRESENTED BY ITS SECRETARY, SABU, UDHYAM PARAMBIL, CHEMPUPURAM P.O. 2. THE PRESIDENT, THE KAIRALI MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LTD. NO. A-986 ALAPPUZHA, (K.K.PANKAJAKSHAN, UDHYAM PARAMBIL HOUSE, CHEMPUPURAM P.O.) 3. THE SECRETARY, THE KAIRALI MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LTD. NO. A-986 ALAPPUZHA, (SABU, UDHYAM PARAMBIL HOUSE, CHEMPUPURAM P.O.) 4. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1-3 BY ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) & SRI.V.K.RAJANANDAN R4 BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.A.No.179 of 2008 B ------------------------- Dated this the 21st day of August, 2008. JUDGMENT The complainant, in C.C.No.647/00 on the file of the Judicial Magistrate of the First Class, Ramankary, is the appellant herein. The following are the reasons given by the court below: “When the accused entered appearance they were furnished with copies of all relevant documents adduced by prosecution. Then particulars of offence is read over and explained to them to which they pleaded not guilty and claimed for trial. After the appearance of accused several opportunities are given to complainant to adduce evidence on his behalf. The case was posted for evidence on 27.11.01. On that day the complainant failed to adduce any evidence on his behalf. On 3.2.02 a specific direction was given to complainant to adduce evidence on his behalf on 12.7.02. But on that day also he failed to adduce any evidence. Again the case was posted for evidence on 20.9.02. On that day also he was absent. According to accused, this is a false and frivolous case. Since it is a false case, the complainant purposely failed to adduce evidence as and when required. If the complainant has any genuine interest he bought to have come and adduced evidence CRL.A.No.179 of 2008 :: 2 :: as and when required. His indifferent attitude in furnishing evidence shows his disinterestedness to proceed the case against the accused. If the case proceed in such a manner without any progress on the side of complainant it will be waste of precious time of court. No just and reliable and satisfactory explanation is furnished by complainant for his failure to adduce evidence and non-appearance on those days fixed for hearing the case. Hence the accused are acquitted u/s.256(i) of Crl.P.C. for offences u/s.138 of Negotiable Instruments Act. The accused are set at liberty and the bail bonds executed by the accused are cancelled.” 2. No doubt, if what has been noted by the court below in paragraph 3 of the order is correct, there may not be any justification in interfering with the acquittal. But, learned counsel for the appellant, Sri.Salil Narayanan refers to Annexure-I, which is a copy of the diary extract of the court below. He particularly points out that there was not even a posting on 3.2.2002, let alone a specific direction having been issued to the complainant to adduce evidence on 12.7.2002. This submission seems to be correct. In fact, there was a posting on 28.2.2002 and on the said day, the complainant CRL.A.No.179 of 2008 :: 3 :: was present. The posting after the same was on 24.4.2002 and when the complainant and the accused were absent, it was adjourned to 3.6.2002. In between there were three other postings and on 9.9.2002, the complainant was present. Again, the matter was adjourned to 28.9.2002. In these circumstances, I am of the view that the order of acquittal does not seem to be justified. 3. Accordingly, the order of acquittal is set aside. The complaint is restored to file. The learned magistrate shall proceed further with C.C.NO.647/00 in accordance with law. The appellant shall appear before the court below on 13.10.2008. The records shall be transmitted to the court below without further delay. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge