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. 255 of 2008() --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1085/2007 Dated 18/10/2007 CC.704/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... APPELLANT: COMPLAINANT ------------------- ANTONY K.GEORGE, KUTHUKALLUNGAL, VAIPUR P.O., KOTTANGAL VILLAGE, MALLAPPALLY TALUK. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW RESPONDENTS: ACCUSED & STATE ------------------------ 1. A.B.SADASIVAN, AMBALAVELIL HOUSE, KULATHOOR P.O., MALLAPPALLY. 2. THE 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.255 OF 2008 ========================= Dated this the 1st day of April 2008 JUDGMENT The complainant in C.C.704/1999 on the file of the Judicial First Class Magistrate's Court, Thiruvalla is the appellant. He assails in this appeal 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 passed by the court below is extracted below for easy reference. "The case was called on for hearing today to which it had been posted/adjourned. The complainant not being present either in person or by pleader, the accused is acquitted under Section 256(1) Criminal Procedure Code". 2. The reason for acquittal of the first respondent/accused under Section 256(1) of the Criminal Procedure Code stated by the Magistrate is that the appellant/complainant is not present either in person or by pleader. The lower court records received show that an application had been filed by the counsel for the appellant for exemption from appearance for the appellant along Crl.A.255/2008 2 with an application for condonation of his absence on 13.12.2002 and the learned Magistrate has passed an order thereon rejecting it on 13.12.2002. This means that the impugned order has been passed by the learned Magistrate on 13.12.2002 without applying his mind at all and even forgetting the fact that an application filed by the lawyer has been rejected by him. It is also not clear from the order as to whether the case stood posted for evidence and whether the absence of the appellant disabled the Magistrate from making any progress in the case. If at all, the presence of the appellant in the court below was not necessary on that particular day to enable the Magistrate to achieve any progress in the case, it was not proper for the learned Magistrate to have disposed of the case acquitting the first respondent. It is also seen that the impugned order is passed in a printed format without the learned Magistrate applying his mind to the facts and circumstances of the case. 3. All the same, it is also noticed that the case is of the year 1999 and the learned Magistrate was disposing it of only on 13.12.2002. This means that the appellant was not at all keen in having his case prosecuted promptly. Further, though Criminal Crl.A.255/2008 3 Leave Petition was filed before this Court on 5.8.2003, till today on account of the laches of the appellant, the appeal could not be disposed of. In the circumstances the case has to be sent back to the court below with strict direction to the appellant to see that he does not show such lethargic attitude hereafter in the conduct of his case. 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 hereafter continue to appear on all posting dates of the case in the court below without fail. He shall also comply with all directions of the Magistrate in the matter of procuring the presence of the first respondent/accused either by issuing summons or warrant, as the case may be, as ordered by the Magistrate as the first respondent has not entered appearance before this Court though served. Any further laches on the part of the appellant in the conduct of the case in the court below shall be at his own risk. The Registry shall send back the LCR to the court below forthwith so as to enable the court below to take up the case on Crl.A.255/2008 4 30.4.2008. The appellant shall also produce a copy of this judgment in the court below on or before 30.4.2008 to enable the Magistrate to comply with and abide by the directions given above. The appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE css/