IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 CRL.A.No. 707 of 2010 -------------------------- (AGAINST THE ORDER IN CRLP.336/2010 Dated 22/03/2010 ST.NO.31/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM) .................... APPELLANT(S)/COMPLAINANT: --------------------------------- G.SURENDRAN, S/O.GOVINDAN, AGED 48 YEARS RESIDING AT CHAVARAYIL VEEDU, KALARI, PANMANA, CHAVARA P.O., KOLLAM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): ACCUSED AND STATE: --------------------------------------------- 1. RADHAKRISHNA PILLAI G., RESIDING AT KALIYILLIL KIZHAKKATHIL, AKKAL, PANMANA, EDAPPALLI KOTTA, KOLLAM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R2 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 707 of 2010 --------------------------------------------- Dated this the 8th day of April, 2010 J U D G M E N T Challenging the order dated 7.1.2010 in S.T.No.31 of 2008 of the Court of the Chief Judicial Magistrate, Kollam, which is an order issued by the Magistrate under Section 256(1) of the Code of Criminal Procedure (for short 'the Cr.P.C.'), the complainant preferred this appeal. 2. Counsel for the appellant/complainant submitted that the appellant was vigilantly prosecuting the case and after the appearance of the accused, the complainant was absent only on four occasions, but except on the date of the impugned order, the complainant was represented by his counsel. In order to substantiate the contention raised by the counsel, he produced Annexure A1 order sheet of the court below in the above case. On a perusal of Annexure A1 order, it can be seen that Crl.A.NO.707 of 2010 :-2-: as the accused was absent, his plea could not be recorded till 9.11.2009 and the bail was granted to the accused only 9.11.2009 from which date the case was adjourned to 10.12.2009. Again, the case was adjourned to 7.1.2010 with a direction to the complainant to be present for adducing his evidence as a last chance. Learned counsel submitted that the complainant could not reach the court at the time of the roll call and though his counsel was informed about his arrival, as the complainant was not physically present, the counsel has also not appeared in the court at the time of the roll call and according to the counsel, it was under the above circumstances, the learned Magistrate issued the impugned order. The counsel submitted that one more opportunity may be granted to the appellant/complainant to prosecute the matter. Crl.A.NO.707 of 2010 :-3-: 3. The cheque in question covers an amount of Rs.1 lakh and from Annexure A1, it appears that the complainant was prosecuting the matter vigilantly and as I indicated earlier, the complainant was absent only on four occasions and except on the last posting date of the case, and on that day, though the complainant was physically absent, he was represented through the counsel. It is true that the complainant was specifically directed to be present on 7.1.2010 as a last chance for adducing evidence, but his absence was not wilful. On a perusal of the order, it can be seen that there is no decision on merit. Therefore, according to me, one more opportunity can be given to the complainant, but subject to terms. In the result, this Criminal Appeal is disposed of setting aside the order dated 7.1.2010 in S.T.No.31 of 2008 of the Chief Judicial Magistrate Court, Kollam on condition that the Crl.A.NO.707 of 2010 :-4-: appellant/complaint deposits a sum of Rs.1000/- (Rupees One Thousand only) in the court below. Accordingly, the appellant/complainant is directed to appear before the court below on 10.5.2010 on which date the court below is directed to restore the complaint on file on satisfaction that the complainant deposits the amount as directed above and to proceed with the complaint in accordance with law and procedure and to dispose of the same on merit, as expeditiously as possible. V.K.Mohanan, Judge MBS/ Crl.A.NO.707 of 2010 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ---------------------------- -------- J U D G M E N T Crl.A.NO.707 of 2010 :-6-: DATED: -2- 2010 Crl.A.NO.707 of 2010 :-7-: