IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 CRL.A.No. 1142 of 2001 -------------------------------------- CC.568/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... APPELLANT/COMPLAINANT: K.DINESHAN, S/O CHANDUKUTTY NAMBIAR, KAKKOPRATH HOUSE, P.O.RAMANTHALI, VIA PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENTS/ACCUSED & STATE: 1. P.SREEDHARAN, S/O CHAMMARAN, PARANGHAN HOUSE, P.O.MANIYATT, VIA TRIKKARIPPUR, KASARGODE DIST. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1142 of 2001 --------------------------- JUDGMENT This is appeal filed with leave by the complainant in C.C.No.568/00 on the file of the Judicial First Class Magistrate's Court, Payyannur assailing the correctness of the order passed by the learned Magistrate, acquitting the first respondent under Section 256(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. The order of the learned Magistrate reads as follows: “Accused produced. Complainant absent. The accused is in judicial custody. Today, case is posted for evidence as no further time. The reason for absence is not convincing. Hence the complaint dismissed. Accused is acquitted under Section 256(1) Cr.P.C.” 2. It is worthy to note that the first respondent/accused was being produced in court, as CRA 1142/01 2 he was in judicial custody and despite that, the appellant did not appear in the court below, though the case was being posted for evidence ordering no further time. It was, therefore, that the learned Magistrate acquitted the first respondent. Technically, acquittal of the first respondent/ accused by the learned Magistrate cannot be faulted. However, it is urged by the counsel for the appellant that the amount of cheque involved in the case is Rupees thirty thousand and at least one more opportunity be granted to the appellant to have his case considered on merits and that therefore, this appeal be allowed and the case be remanded. I am of the view that one opportunity is to be granted to the appellant to have his case considered on merits, if at all he is anxious to have his case considered on merits. In the result, allowing this appeal, I set aside the order of acquittal impugned and remit the case back to the court below.The learned Magistrate shall dispose of the case afresh according to law. CRA 1142/01 3 The appellant shall appear in the court below positively on 28.3.2008 without fail and shall continue to appear on all future posting dates of the case till the case is disposed of by the learned Magistrate. He shall further take whatever steps necessary and as ordered by the learned Magistrate to get down presence of the first respondent/accused, as the first respondent has not entered appearance before this Court despite service of notice.It is made clear that any further negligence on the part of the appellant/complainant in prosecuting the complaint shall result in disposal of the case under Section 256(1) Cr.P.C. It is further made clear that remand of the case shall not preclude the learned Magistrate to have the case disposed of invoking Section 256(1) Cr.P.C., if at all the appellant is not showing promptness as is expected of him in future. 13th March, 2008 (K.P.Balachandran, Judge) tkv CRA 1142/01 4 K.P.Balachandran, J. --------------------- Crl.A.No.1142 of 2001 --------------------- JUDGMENT 13th March, 2008