IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRL.A.No. 566 of 2008 ------------------------------------ CC.93/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT/COMPLAINANT: N.MOHANAKUMAR ,T.C. 37/1961, WEST FORT STREET, WEST FORT P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS/ACCUSED: 1. K.VIJAYAKUMAR ,T.C. 42/642 KALUMOODU JUNCTION, THALIKUTTATHIL VEEDU MUTTATHARA, VALLAKADAVU P.O., THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 566 of 2008 --------------------------- JUDGMENT This is appeal filed with leave by the complainant in C.C.No.93/99 on the file of the Judicial First Class Magistrate's Court-V (Special Court for Mark List Cases), Thiruvananthapuram, assailing the acquittal of the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act, vide Section 256(1) Cr.P.C. 2. The relevant portion of the order contained in paragraphs 3 and 4 is extracted below for convenience of reference: “3. On 5.10.2000 the case was posted for issuing NBW to the accused. When the case was called today, 22.11.2000 the complainant is absent. It is also found that the complainant has not paid the required process fee for issuing the NBW. There was no representation when the case CRA 566/08 2 was called during the roll call and hence the case was passed over and called several times before the lunch break. After lunch session also the case was called several times. There was no representation for the complainant. The complainant's counsel also was absent. The case was taken as the last work of the day and since the complainant and the counsel are absent and there is no representation for the complainant and since the process fee for issuing the process for the appearance of the accused is not paid the complaint is dismissed and the accused is acquitted invoking Section 256(1) Cr.P.C. 4. In the result, the accused is acquitted under Section 256(1) Cr.P.C.” 3. From the above order, it is evident that the court was disposing of the case for the reason that the appellant did not remit the required process fee for issuance of non bailable warrant to the first respondent. In that event, the disposal should have been under Section 204(4) Cr.P.C. and CRA 566/08 3 not under Section 256(1) Cr.P.C., acquitting the first respondent/accused. The order impugned is, hence irregular and illegal and deserves to be set aside. 4. In the result, I set aside the order impugned and remit the case back to the court below for disposal afresh according to law. If at all the appellant is interested in prosecuting the matter, he shall appear in the court below positively on 15.5.2008 and shall continue to appear invariably on all posting dates of the case hereafter, till its disposal. Further, he has to abide by the directions of the learned Magistrate to take out summons or warrant, as the case may be, as against the first respondent/accused, who had not entered appearance. Any failure on his part to do the needful for the progress of the case will be at his own risk. The appellant is directed to produce a copy of this judgment in the court below positively at least one week prior to the date of CRA 566/08 4 posting of the case in the court below to enable the learned Magistrate to take up the case and to dispose of the matter afresh abiding by the directions in this judgment and also giving top priority to the case, in view of the fact that the complaint is one of the year 1999. The appeal is, thus, disposed of by way of remand. 11th April, 2008 (K.P.Balachandran, Judge) tkv