IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 CRL.A.No.2064 of 2007 ( ) ------------------------------- AGAINST THE ORDER IN CRL.L.P.967/2007 Dated 09/10/2007 CC.534/2004 of JUDL.MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA .................... APPELLANT: APPELLANT. ----------------------------- M.O.VISWAMBARAN, MUTATHU VEEDU, PUTHANAMBALAM P.O., IVERKALA, KUNNATHOOR TALUK. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENTS: ACCUSED. ------------------------------ 1. B.SANTHOSHKUMAR,THEKKE PEROOR VEEDU, KUNNATHOOR EAST P.O.,KUNNATHOOR VILLAGE, KUNNATHOOR TALUK. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.2064 of 2007 ------------------------------------------------ Dated this the 26th day of March, 2008 JUDGMENT This is appeal filed by the complainant in C.C.534/04 on the file of the Judicial First Class Magistrate's Court, Sasthamcotta assailing the order of acquittal of the first respondent of offence under Section 138 of the N.I. Act under Section 256(1) of the Criminal Procedure Code. The order assailed reads as follows:- “Complainant absent. Applied. Rejected. No process fee was paid for issuing process to the accused. The complainant is continuously absent also. There is no reason to adjourn the case further. Hence, the accused is acquitted under Section 256(1) Cr.P.C.” 2. From the impugned order, it is evident that no process fee was paid for issuing process to the accused. The presence of the complainant had nothing to do for non-payment of the process fee and for reason of absence of the complainant a case in which no process Crl. Appeal No.2064 of 2007 -2- was paid to issue process to the accused could not have been disposed of recording order of acquittal under Section 256(1) Cr.P.C. The order impugned therefore, suffers infirmity in law as the order should have been passed not under Section 256(1) Cr.P.C but under Section 204(4) of the Cr.P.C dismissing the complaint. Inasmuch as the order suffers infirmity by reason of disposal under Section 256(1) in lieu of dismissal under Section 204(4) Cr.P.C the order impugned deserves to be set aside. 3. Counsel for the appellant prays for an opportunity being afforded to the appellant to have the case prosecuted and to have it decided on merits. 4. In the circumstances of the case stated above, the appeal deserves to be allowed setting aside the order assailed. 5. In the result, allowing this appeal, I set aside the order assailed 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 Crl. Appeal No.2064 of 2007 -3- 29/04/08 and shall continue to appear hereafter on all posting dates of the case till the case is disposed of by the court below. He shall also take all steps as ordered by the court below to procure the presence of the first respondent/accused without any default or defect and any further laches on his part in prosecuting the case in the court below shall be at his risk. This appeal is thus, allowed by way of remand. The Registry shall transmit the L.C.R to the court below forthwith so as to enable the case being taken up in the court below on 29/04/08. The appellant may produce a copy of this judgment in the court below so as to enable the court below to comply with the directions given above and to have the case disposed of at the earliest. K.P.BALACHANDRAN, JUDGE kns/-