IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 CRL.A.No. 905 of 2001() ----------------------- CC.556/1998 of JUDL.MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... APPELLANT(S): -------------- V.T. JOSEPH @ BABYCHAN, VETTIPARAMBIL, CHANNANIKADU P.O., KOTTAYAM. BY ADV. SMT.KOCHUMOL KODUVATH RESPONDENT(S): --------------- 1. T.K.SAJEEV, THEYYAPARAMBIL, THAZHATHANGADI P.O., KOTTAYAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SURIN GEORGE IPE R2 BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A No.905 of 2001 ---------------------------------------------- Dated, 18th March, 2009. JUDGMENT Appellant who is the complainant, in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, preferred this appeal as he is aggrieved by the order of acquittal passed by the court below under section 256(1) Cr.P.C. 2. The case of the complainant is that the accused issued a cheque, towards the discharge of a debt of a sum of Rs.35,000/-, which when presented for encashment, was dishonoured for want of sufficient funds. Thus, after complying with the statutory formalities, he approached the court of Judicial First Class Magistrate-III, Kottayam, preferring the complaint and, accordingly, C.C.No.556/98 was instituted in that court. Thus, when the case was taken on 26.4.2001, the complainant was absent and there was no representation. Hence, the court below acquitted the accused under section 256(1) Cr.P.C. by a separate order which is under challenge in this appeal. 3. I have heard the learned Counsel Smt. Kochumol Koduvath, appearing for the appellant, and also Sri Surin George Ipe, the counsel appearing for the Ist respondent. 4. The learned counsel appearing for the appellant submitted CRL.A.NO.905/2001 -:2:- that originally the case was posted for hearing on 26.4.2001, but the posting date was mistakenly noted down by the counsel for the appellant as 26.5.2001 and, therefore, when the case was taken for consideration on 26.4.2001, neither the complainant nor his counsel was present and accordingly, the learned Magistrate passed the impugned order. The learned counsel submitted that there is no willful laches or negligence on the part of the complainant in appearing before the court below and prosecuting the complaint and the case was not represented on that day because of the defect occurred in noting down the date. Therefore, the counsel submitted that an opportunity be given to the complainant to complete the prosecution. 5. On the other hand, the learned counsel appearing for the Ist respondent submitted that the case is pertained to the year 1998 and if the case is remanded for trial, it will create prejudice to the accused, because, by the lapse of time, the records may not be available for defence evidence, and therefore, according to the learned counsel, no interference is called for at this belated stage. 6. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the Ist respondent. 7. The amount covered by the cheque in question is CRL.A.NO.905/2001 -:3:- Rs.35,000/-. Since the impugned order was passed under section 256(1) Cr.P.C., there is no finding on merit regarding the claim and allegations in the complaint. The learned counsel for the appellant made available to me a copy of the order sheet of the court below. It is true that when the case was called on 26.4.2001, neither the complainant nor his counsel was present. It is also relevant to note that the case is pertained to the year 1998 which stood posted on that day for evidence of the complainant. Therefore, I find no illegality or wrong in the order passed by the court below. 8. However, on a perusal of the order sheet of the court below, it can be seen that, altogether there were 20 posting dates of the case including the last one, i.e. on 26.4.2001. Out of the remaining 19 posting dates, on two occasions, the complainant was absent, among which, on 28.9.2000, the case was adjourned to 3.3.2001 by notification by the court and on another date, the accused surrendered after having advanced the case to 26.4.2001. Thus it can be seen that almost on all posting dates, the complainant was present in person. It is also relevant to note that on 5.2.2001, the complainant was present and he was examined as PW1 and Exts.P1 to P5 were marked. It was adjourned for further evidence of the complainant and the evidence was closed on 3.3.2001. CRL.A.NO.905/2001 -:4:- Thereafter the accused absconded, consequently, bail bond was cancelled and non bailable warrant was issued. Thus, the impugned order was passed on 26.4.2001, when the accused was absconding and notices were issued to the sureties. From the above materials, it is crystal clear that the complainant was vigilantly prosecuting the complaint and he had adduced evidence and the entire evidence was closed and because of the wrong noting of the posting date by the counsel, the complainant could not present on 26.4.2001, consequently, the impugned order was passed. The amount covered by the cheque in question is Rs.35,000/- and as such there is no finding on merit. Therefore, it is only just and proper to give a chance to the complainant for further prosecution of the complaint and to have a complete and perfect quietus on the issue. However, the case is pertained to the year 1998 and there was no representation on 26.4.2001, when the case was called. Therefore, this appeal can be allowed only on terms. 9. In the result, the impugned order is set aside and the matter is remitted back to the trial court for disposal on merit and the parties are directed to appear before the court below on 18.4.2009, on which day the court below is directed to take up the complaint, on satisfaction that the complainant has deposited a sum of Rs.1000/- CRL.A.NO.905/2001 -:5:- (One thousand only) before the court below which shall be paid to the State Exchequer, and to proceed with the complaint and dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- CRL.A.NO.905/2001 -:6:- V.K.MOHANAN, J. CRL.A. No.905 OF 2001 Judgment Dated:18.3.2009