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. 283 of 2008() --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.70/2008 Dated 24/01/2008 CC.17/2007 of THE JUDICIAL MAGISTRATE FIRST CLASS - IV PUNALUR. .................... APPELLANT: COMPLAINANT -------------------- ABDUL VAHAB, "AJAS MANZIL", AMPALATHUM MUKAL, THADIKKADU P.O., ANCHAL VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.S.PRAKASH RESPONDENTS: ACCUSED AND STATE ----------------------- 1. HARIDAS, "EDAYILAZHIKATHU VEEDU", ERAM, THADIKADU P.O., ANCHAL VILLAGE, ANCHAL POLICE STATION BORDER. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 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.283 OF 2008 ========================= Dated this the 1st day of April 2008 JUDGMENT This appeal is filed by the complainant in C.C.17/2007 on the file of the Judicial First Class Magistrate's Court IV, Punalur 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 impugned order reads as follows: "Complainant absent. Application disallowed. For 5 postings complainant is absent. Direction was given for the appearance of the complainant. Accused present. Complaint dismissed u/s.256 Cr.P.C." 2. It is seen that the learned Magistrate has disallowed the application for reason of the continuous absence of the appellant and even prior to the disposal of the case on 21.12.2007, the appellant was absent on 5 posting dates. In the nature of the conduct of the appellant, I am unable to find fault with the learned Magistrate in having disposed of the case acquitting the CRL.A.283/2008 2 accused under Section 256(1) of the Cr.P.C. 3. The counsel for the appellant prays for leniency in the matter and requests for one more opportunity being afforded to the appellant to have his case considered on merits. I am of the view that an opportunity can be afforded to the appellant to have his case considered on merits. 4. In the result, I set aside the impugned order and remit the case back to the court below for disposal afresh, according to law. The appellant shall appear in the court below positively on 30.4.2008 and shall continue to appear on all posting dates of the case hereafter in the court below without fail. He shall also take steps to procure the presence of the first respondent/accused without any default as directed by the learned Magistrate. Any laches on the part of the appellant to be present on all posting dates of the case or to comply with any direction of the Magistrate hereafter shall be at his own risk. Registry shall forward the lower court records to the court below forthwith to enable the case being taken up on 30.4.2008 CRL.A.283/2008 3 in the court below. The appeal is thus disposed of by way of remand. K.P.BALACHANDRAN, JUDGE css/