IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 CRL.A.No. 705 of 2002() ----------------------- CC.636/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT(S)/COMPLAINANT: ------------------------- P.GOPINATHAN NAIR, USHA NIVAS, KOTTARAKKARA. (DIED) ADDL.APPELLANTS: 2.J.SARASAMMA,W/O.LATE P.GOPINATHAN NAIR, USHA NIVAS, KOTTARAKKARA. 3.USHA G.NAIR, D/O.LATE P.GOPINATHAN NAIR, USHA NIVAS, KOTTARAKKARA. 4.JAYASREE.S.,D/O.LATE P. GOPINATHAN NAIR, USHA NIVAS, KOTTARAKKARA. 5.MINI G. NAIR,D/O.LATE P. GOPINATHAN NAIR, USHA NIVAS, KOTTARAKKARA. 6.PRADEEP G. NAIR,S/O.LATE P. GOPINATHAN NAIR, USHA NIVAS, KOTTARAKKARA. ADDITIONAL APPELLANT 2 TO 6 ARE IMPLEADED AS PER ORDER DATED 25.3.2009 IN CRL.M.A.NO.10539/2007. BY ADV. MR.V.N.ACHUTHA KURUP, SENIOR ADVOCATE SRI.B.S.SWATHY KUMAR SRI.BINDU SREEKUMAR RESPONDENT(S)/ACCUSED & STATE: ------------------------------ 1. A.NARAYANAN, NARAYANA BHAVAN, KOTTARAKARA. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.B.MOHANLAL FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.A.NO.705 OF 2002 (C) ----------------------------------- Dated this the 8th day of April, 2009 J U D G M E N T Complainant is the appellant. He filed a complaint against the 1st respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, for short the 'N.I.Act'. After appearance of the accused on the hearing date, the complainant was absent, and thereupon, the learned Magistrate passed an impugned order under Section 256 (1) of the Cr.P.C., acquitting the accused. Aggrieved by the order of acquittal, questioning its legality and correctness, complainant has preferred this appeal. 2. I heard the counsel of both sides. Complainant was present on all hearing dates and his absence on the date when the impugned order was passed arose not on account of his fault but due to a mistake made by the Bench clerk while calling out the next hearing date, on the previous posting, is CRL.A.705/02 2 the submission of the learned counsel for the complainant, who urged for reversal of the order of acquittal rendered in favour of the accused due to the absence of the complainant. 3. Whatever be the merit of the submission made by the complainant, perusing the order sheet of the court below, I find that the case has been referred to adalat for settlement and agreed upon to be settled by the parties for the sum mutually fixed, after mediation. A portion of the amount agreed upon was also paid to the complainant on subsequent hearing dates of the case. The order sheet would show there was consistent default on the part of the accused to appear on the subsequent hearing dates, and the learned Magistrate imposed cost against him. Cost ordered was not paid in full but only in part. His application for excusing his absence was rejected and warrant was issued against him to secure his presence. Further proceedings of the case would show that the learned Magistrate ordered for initiating steps under Sections 82 and 83 against the accused, and also notice to his sureties. The above directions were ordered on CRL.A.705/02 3 20.2.2002 and the case was posted to 1.4.2002. The impugned order acquitting the accused for the absence of the complainant, it is seen, was passed on 1.4.2002 when the case stood posed for awaiting the execution of warrant ordered against the accused, the steps taken under Sections 82 and 83 of Cr.P.C., and return of the notice of the sureties of the accused. The absence of the complainant on that hearing date, needless to point out, was not at all material and the acquittal of the accused in the above circumstances for the absence of the complainant cannot be justified. Personal appearance of the complainant on the above hearing date was not necessary as the case stood posted for report on the steps taken to secure the presence of the accused against whom, warrant had already been ordered. The impugned order of acquittal rendered in favour of the accused cannot be sustained in the above facts and circumstances of the case, and it is accordingly set aside. 4. Parties are directed to appear before the court below on 30th April, 2009, and the learned Magistrate shall give the CRL.A.705/02 4 case top priority and dispose it off as expeditiously as possible and at any rate within three months from the date of appearance of the parties. In case, the presence of the accused is not secured though he is represented by a counsel before this Court, for any reason whatsoever, the learned Magistrate shall take such coercive steps as necessary to secure his presence to complete the trial and dispose the case as expeditiously as possible. Appeal is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.A.NO.705 OF 2002 (C) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 8th April, 2009