IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 CRL.A.No. 1158 of 2010() ------------------------ CC.20/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ADOOR .................... APPELLANT(S)/COMPLAINANT :- ---------------------------------------------- ZAKEER H., AGED 36 YEARS, S/O.HASSAN RAWTHER, KOODATHINAL KIZHAKKETHIL, THONNALLOOR, PANDALAM, PATHANAMTHITTA. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENT(S)/ACCUSED & STATE :- ------------------------------------------------------ 1. K.G.YOHANNAN, THEKKUNILKUNNATHIL, MANGARAM, PANDALAM P.O. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.A.No.1158 of 2010 --------------------------------- Dated this the 30th day of June 2010 J U D G M E N T This is an appeal preferred by the complainant in a prosecution for an offence under Sec.138 of the N.I.Act, challenging the order under Sec.256(1) of Cr.P.C. 2. The learned counsel for the appellant submitted that a mistake committed by the clerk of the counsel appearing for the complainant in the court below in noting the actual posting date of the case and hence when the case was taken on 18.4.2009 neither the complainant nor the counsel was present and as such the learned Magistrate acquitted the accused stating that the absence of the complainant is willful. 3. In the impugned order the learned Magistrate has elaborately stated the data's and particulars which are Crl.A.No.1158 of 2010 : 2 : sufficient to gather the sheer negligence on the part of the complainant. The case was taken on file as C.C.No.813/2007 of the court of Judicial First Class Magistrate-I, Adoor and subsequently it was made over to the present trial court. On receiving the case, the case was refiled as C.C.No.20/2008. As per the order impugned the case was called in the open court on 9.1.2009 thereafter from 7.2.2009 onwards it was being posted for adducing the evidence of the complainant. On 7.2.2009 when the case was called, complainant was absent and there was no representation and no application was also moved. Then the court issued notice to the complainant and the case was adjourned to 13.2.2009 for adducing evidence. Thus, when the case was called on 13.2.2009, the complainant was again absent and no evidence was adduced. Again it was adjourned to 20.2.2009 and 6.3.2009. Subsequently, on these two occasions also, complainant was not present. On 13.3.2009 and 20.3.2009 again the case was adjourned for Crl.A.No.1158 of 2010 : 3 : adducing evidence with a specific direction to the complainant that he should be present and finally posted on 15.4.2009. On 15.4.2009 when the case was called, complainant was absent and notice was issued to the complainant as last chance and finally the case was posted for complainant's evidence on 18.4.2009. On 18.4.2009 also the complainant was absent though the accused was present. On 18.4.2009 he was also not represented by the counsel and no application was moved. From the above details it is crystal clear that the complainant is sheer negligent and he had not availed the opportunities generously given by the court below to adduce evidence even though it was for the complainant to prosecute the matter vigilantly if he is sincere with his case. But in the present case, though several opportunities are given, the complainant willfully not appeared before the court and no evidence was adduced. 4. It appears that an affidavit is filed by the counsel Crl.A.No.1158 of 2010 : 4 : appearing for the complainant in the court below, which will only explanation with respect to the non-appearance of the complainant on 18.4.2009. There was no explanation as to why the complainant failed to appear on the previous posting dates which I indicated earlier. Therefore I find no reason to interfere with the order passed by the court below. Accordingly, there is no merit in the appeal, the same deserved to be dismissed and I do so. V.K.MOHANAN, JUDGE. Jvt