IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 CRL.A.No. 209 of 2008 ------------------------------------- STC.1549/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... APPELLANT/COMPLAINANT: P.P. PREMAN, S/O. KRISHNA VYDIAR, KRISHNA NIVAS, P.O. KADACHIRA, KANNUR DISTRICT. BY ADV. SRI.C.K.SREEJITH RESPONDENTS/RESPONDENTS: 1. P. MOHAMMED KUNHI, PARAMMEL AGENCIES, PILATHARA, KANNUR. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY ADV. SRI.INNOCENT FRANCIS PAPALI BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 209 of 2008 --------------------------- JUDGMENT This is appeal filed by the complainant in S.T.Case No.1549/01 on the file of the Judicial First Class Magistrate's Court-I, Kannur, assailing the acquittal of the first respondent/accused under Section 256(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. Heard counsel on both sides. 3. It is contended by the counsel for the appellant that he had made an application for adjournment of the case, as the appellant was not well; but that the court below was rejecting that application and disposing of the case, acquitting the accused under Section 256(1) Cr.P.C. and that the procedure adopted by the court below is not justified, in view of the genuine reason stated for the absence of the appellant. CRA 209/08 2 4. Counsel for the first respondent submits that there was specific direction for the appellant to appear for cross-examination on 14.7.2003 and it was for reason of non compliance of the direction of the court below that the case was disposed of by the court below by the order impugned. 5. I have perused the copy of the order sheet as also the applications filed by the appellant in the court below for adjournment. The posting on 14.7.2003, the date on which the case was disposed of by the learned Magistrate, was an adjourned posting date from 2.7.2003 and on 2.7.2003 the case was being adjourned for settlement or for evidence to 14.7.2003.Apart from that, there was no specific direction for the appellant to appear, but all the same, altogether there were nine postings for the case, as seen from the order sheet and there are altogether eight applications for adjournment filed on behalf of the appellant in the court below. In all the applications, the reason stated for CRA 209/08 3 adjournment is that the counsel is informed by the appellant/complainant that he is laid up with fever. Considering the stereo typed applications filed in the court below, there was no justifiable reason for adjournment and the learned Magistrate cannot be blamed for having disposed of the case in the manner in which he has done it. 6. However, counsel for the appellant submits that at least one opportunity be afforded to the appellant to substantiate his case on merits, as the amount covered by the cheque is Rs.40,000/-. I am of the view that the request can be granted, but all the same, it can only be on heavy costs, if at all the appellant wants to have his case prosecuted on merits. In the result, I order that in the event of the appellant depositing by way of cost an amount of Rs.2,000/- (Rupees two thousand only) to the credit of High Court Legal Services Committee and receipt is produced positively on or before 10.4.2008, this CRA 209/08 4 appeal shall stand allowed and the case remanded to the court below for trial and disposal afresh. In case cost is not deposited and receipt is not produced on or before 10.4.2008, this appeal shall stand dismissed. In the event of the appellant complying with the conditions and remand order taking effect, it is further ordered that the parties shall appear in the court below positively on 30.4.2008 and the appellant shall continue to be present in the court below on all posting dates of the case hereafter without fail till the case is disposed of by the court below. He shall also abide by all the directions given by the court below. Any further laches on the part of the appellant shall be at his own risk. Report compliance on 11.4.2008. 4th April, 2008 (K.P.Balachandran, Judge) tkv CRA 209/08 5 This Court allowed the Criminal Appeal by way of remand by a conditional order of depositing an amount of Rs.2,000/- to the credit of High Court Legal Services Committee and producing receipt on or before 10.4.2008. Cost is not deposited and receipt is not produced. There is no representation also for the appellant and counsel for the appellant also is absent. In the result, the conditional order passed in Criminal Appeal No.209/08 does not come into operation and the Criminal Appeal stands dismissed. 11th April, 2008 K.P.Balachandran,Judge