IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.A.No. 1743 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.441/2006 Dated 30/08/2006 ST.932/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... APPELLANT(S): COMPLAINANT ------------------------- SANJEEV SABOO,S/O.R.N.SABOO, MANAGING DIRECTOR,M/S.SAVO POLYMERS & PRODUCTS PVT. LTD.,SAVO SADAN,M.M.ALI ROAD,KOZHIKODE, REP. BY HIS P/A.HOLDER T.C.RADHAKRISHNAN, S/O.K.C.BALAKRISHNAN NAIR,SREEVALSAM,PERUVALLOOR, CALICUT. BY ADV. SRI.SUNNY MATHEW RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. HARIKUMAR,MANAGING PARTNER, COCHIN AUTO DISTRIBUTORS,KOONAMTHAI, NEAR CHILTAN,EDAPALLI,ERNAKULAM, NOW RESIDING AT VAIKUNDAM HOUSE, PUTHENPURA CROSS ROAD,P.O.COCHIN UNIVERSITY, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.ANILKUMAR (KALLESSERIL) FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 1743 OF 2006 ------------------------------- Dated this the 22 nd September, 2008. JUDGMENT Challenging the order passed by the court below under Section 256(1) Cr.P.C, the complainant preferred this appeal. S.T.932/2003 on the file of the Judicial Magistrate of First Class-I, Kozhikode is instituted upon a private complaint filed by the appellant- complainant for an offence under Section 138 of the Negotiable Instruments Act wherein the amount involved in the dishonoured cheque is Rs.1,16,032/-. The above case was instituted on 11.4.2003. When the case was taken on 27.7.2005 the same was disposed of under Section 256(1) Cr.P.C acquitting the accused as the complainant was not present to prosecute the complaint. It is the above order of acquittal challenged in this appeal. 2. I have heard counsel for the appellant and counsel for the respondent. 3. Counsel for the appellant submitted that the complainant was very diligent in prosecuting the complaint and he appeared before the court below on all occasions either personally or through Crl. Appeal No: 1743/06 2 his counsel. It is specifically stated in the appeal memorandum and the counsel for the appellant reiterated the same that on 27.7.2005 the appellant-complainant could not appear before the court below but he was represented through his counsel and the counsel for the complainant filed a petition to condone his absence. But it is the further case of the counsel for the appellant that the said petition was dismissed by the court below and the accused was acquitted under Section 256(1) Cr.P.C. I have gone through the impugned order of the court below. From the impugned order it is crystal clear that the complainant was absent in spite of the fact that there was a specific direction to be present on that day. The learned Magistrate has also found that no reason is made out to grant further adjournment. Thus it was accordingly ordered under Section 256(1) Cr.P.C acquitting the accused. There is no mentioning regarding the filing of the petition for and on behalf of the complainant in the impugned order. On the other hand the counsel submitted that an application has already been filed for and on behalf of the complainant before the court below. 4. Going by the materials available on record and on hearing all the parties concerned, I am of the view that the cheque in Crl. Appeal No: 1743/06 3 question related to an amount of Rs.1,16,032/-. There is no order on merit with respect to the dishonour of the cheque. It is also appeared to me that the complainant was regularly appearing before the court either in person or through his counsel. But no material is produced by the counsel for the appellant to show that an application was filed on 27.7.2005 to excuse his absence. However, as the matter has not been decided on merits, I am of the view that for the ends of justice one more opportunity can be given to the complainant to prosecute the complaint but subject to terms. In the result this appeal is allowed on condition that the appellant-complainant pay a sum of Rs.2,500/- (Rupees two thousand five hundred only) to the respondent-accused as cost and on payment of such cost the court is directed to take up the complaint on file and to proceed with the trial of the case and to dispose the same on merit. The parties are directed to appear before the court below on 31.10.2008. V.K.MOHANAN JUDGE jj