IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 CRL.A.No. 821 of 2003() ----------------------- ST.7446/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, MANJERI .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------ P.K.BALARAM, VILLOTH HOUSE, POOKOTTUMPADAM P.O., NILAMBUR. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENT(S): ACCUSED: -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.THOMAS MATHEW, HEADMASTER, G.M.L.P.SCHOOL, KANHIRAMPADAM, CHOKKAD P.O., KALIKAVU. R1 BY PUBLIC PROSECUTOR SMT. PUSHPALATHA R2 BY ADVS. SMT.K.V.RESHMI, SMT.C.S.SULEKHA BEEVI. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ======================== Crl.APPEAL. No.821 OF 2003 ==================== Dated this the 23rd day of July, 2010. JUDGMENT Complainant in S.T.No.7446 of 2001 on the file of Judicial First Class Magistrate Court-I, Manjeri filed this appeal challenging the order of acquittal passed under Section 256 (1) of Code of Criminal Procedure. First respondent is the accused. 2. Appellant lodged the complaint against the first respondent which was taken cognizance by the learned Magistrate for the offence under Section 138 of Negotiable Instruments Act. The proceeding paper of learned Magistrate establishes that even though appellant was present on several occasions, the evidence was not recorded either as first respondent was absent or court did not find time to record the evidence. Finally on 4.1.2003, second respondent was absent and on his application, absence was condoned and appellant was examined as PW1 and Exts.P1 to P4 and C1 were marked. After closing the evidence of the Crl.APPEAL. No.821 OF 2003 2 appellant, case was posted for questioning the second respondent on 27.1.2003. He was questioned on that day and case was posted for defence evidence on 21.7.2003. On that day, recording that second respondent is present and appellant was absent, it was adjourned to 31.1.2003. On 31.1.2003, recording that second respondent is present and appellant was absent and there was no representation, and conduct of the appellant in keeping himself away from the court indicates that he lost interest in prosecuting the case, second respondent was acquitted under Section 256(1) Code of Criminal Procedure. 3.When the evidence of complainant was recorded on 4.1.2003 and second respondent was questioned under Section 313 of Code of Criminal Procedure on 17.1.2003 and the case was posted for defence evidence, even if complainant was not physically present, it does not mean that appellant has lost interest in the case as presumed by the learned Magistrate. If second respondent intended to adduce evidence, the learned Magistrate could have Crl.APPEAL. No.821 OF 2003 3 recorded the evidence. If the witness was not cross examined, the learned Magistrate could have recorded no cross examination and on appreciation of the evidence, could have either convicted or acquitted the accused. The order of acquittal on the presumption that appellant lost interest in the case is perverse. The order of acquittal therefore could only be set aside and learned Magistrate is to be directed to proceed with the case. If second respondent is examining himself or any other witness, the evidence is to be recorded and thereafter the case has to be deposed on the evidence, in accordance with law. 4. Appeal is allowed. Order of acquittal dated 31.1.2003 is set aside. S.T.No.7446 of 2001 is restored on the file and remitted Judicial First Class Magistrate I, Manjeri. The learned Magistrate is directed to proceed with the case in accordance with law. If the second respondent let in evidence, it is to be recorded and thereafter on the evidence the case is to be decided. Parties are directed to Crl.APPEAL. No.821 OF 2003 4 appear before Judicial First Class Magistrate-I, Manjeri, on 3.9.2010. Send back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE. mns