IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 CRL.A.No.75 of 2008 (D) ----------------------------- AGAINST THE ORDER IN CRL.L.P.1261/2007 Dated 14/12/2007 ST.332/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT- II,PATHANAMTHITTA .................... APPELLANT: COMPLAINANT -------------------------------- THE PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS POWER OF ATTORNEY HOLDER C.K.VIJAYAMMA, THE MANAGER, PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK, KONNI BRANCH. BY ADV. SRI.ANOOP MATHEW ABRAHAM SRI.LATHEESH SEBASTIAN RESPONDENTS: ACCUSED & STATE ----------------------------------------- 1. RADHAKRISHNAN NAIR, KUMMANIL MANNIL HOUSE, IRAVON P.O., KONNI, PATHANAMTHITTA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.75 of 2008 ------------------------------------------------ Dated this the 18th day of February, 2008 JUDGMENT The complainant in S.T.332/07 on the file of the Judicial First Class Magistrate's Court, Pathanamthitta is the appellant in this appeal assailing the acquittal of the first respondent of offence under Section 138 of the N.I. Act vide Section 256(1) Cr.P.C. The impugned order shows that it is passed on 12/02/07 whereas it is actually on 12/11/07. The attested copy of the order sheet in the court below produced by the appellant shows that the case was posted for affidavit evidence as a last chance to 07/11/07; that on 07/11/07, the first respondent/accused was absent and his application was allowed but the appellant/complainant was absent and there was no representation on his behalf and no affidavit also had been filed. Therefore, on 07/11/07, the learned Magistrate ordered that Crl. Appeal No.75 of 2008 -2- the complainant shall be present for evidence on 12/12/07. LCR is got down and on perusal of the original of the order sheet it is seen that the case was adjourned from 07/11/07 to 12/11/07, but that in the readable copy of the order the date of adjournment was noted as 12/12/07 and later, it was corrected as 12/11/07; and it was on 12/11/07 that the case is disposed of acquitting the first respondent under Section 256(1) Cr.P.C of offence under Section 138 of the N.I. Act for the reason that the complainant is absent and there is no representation on his behalf. 2. The grievance of the appellant is that the adjournment from 10/10/07 to 07/11/07 was noted by the clerk mistakenly as 07/12/07. There is no much merit in such a stand taken, but however, in view of the mistake that is seen in the readable copy of the order sheet that would have been carried forward certainly in “A” diary also, I am of the view that the Crl. Appeal No.75 of 2008 -3- appellant should be afforded an opportunity to have his case considered on merits. 3. In the result, allowing this criminal appeal, I set aside the order of acquittal passed by the court below and remit the case back to the file of the Judicial First Class Magistrate's Court-II, Pathanamthitta for disposal afresh according to law. The appellant and the first respondent who are respectively the complainant and the accused are directed to appear for the case in the court below on 25/03/08. No notice need not be issued to parties as the direction to appear in the court below on 25/03/08 is taken note of by counsel on both sides. The court below shall expedite disposal of the case and shall dispose of the case in any event within four months from 25/03/08. K.P.BALACHANDRAN, JUDGE kns/-