IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 CRL.A.No.2444 of 2007 (A) -------------------------------- ORDER IN CRL.L.P.1178/2007 Dated 20/11/2007 ST.1450/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II (MOBILE COURT), KOZHIKODE. .................... APPELLANT: COMPLAINANT -------------------------------- V.P.MOHANAN, S/O.UKKAPPAN NAIR, AGED 47 YEARS, "SARANG", CHATHANARIPARAMBA, KARANNUR AMSOM, PUTHUR DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.A.RANJITH NARAYANAN RESPONDENTS: ACCUSED ------------------------------ 1. SASEENDRAN T., S/O.APPUKUTTAN, AGED 50 YEARS, "DHANYASREE HOUSE", OLAVANNA, PANTHEERANKAVU (VIA), KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKAN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.2444 of 2007 ------------------------------------------------ Dated this the 10th day of January, 2008 JUDGMENT The appellant is the complainant in S.T.1450/07 on the file of the Judicial First Class Magistrate's Court-II (Mobile Court), Kozhikode, a complaint filed under Section 138 of the N.I. Act. The court below vide order impugned acquitted the accused under Section 256(1) Cr.P.C and hence, this appeal with leave. 2. Heard the counsel for the appellant. The relevant portion of the order impugned is extracted below for easy reference:- “Complainant absent. No representation. Accused present. Today is the fifth posting day for complainant's evidence. The complainant is absent throughout. Accused present on all these days. There is no reason to adjourn the case further. Accused is acquitted under sec.256(1) Cr.P.C.” Crl. Appeal No.2444 of 2007 -2- 3. It is submitted by counsel for the appellant in paragraphs 2 and 3 of the memorandum of appeal that the Magistrate took cognizance of the offence under Section 138 of the N.I. Act; thereafter the appellant was unable to contact his lawyer as he was laid up and that the appellant is not a healthy person and suffers from various diseases including arthritis and was laid up for more than a month with severe fever. There is no mention at all as to the date when cognizance was taken by the Magistrate and from which date to which date was the appellant laid up. There is no evidence also furnished to show that the appellant was laid up as alleged. Appellant has no case that he was not absent on all the five prior postings also when the case stood posted for evidence as observed in the impugned order. Obviously no progress could be made in the case unless the appellant/ Crl. Appeal No.2444 of 2007 -3- complainant appeared to tender evidence. Acquittal of the accused, in the circumstances is justified as the Magistrate could not have adopted any other course in the circumstances. There is no merit in this appeal. 4. In the result, I dismiss this Criminal Appeal refusing admission. K.P.BALACHANDRAN, JUDGE kns/-