IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 CRL.A.No.157 of 2008 ( ) ----------------------------- AGAINST THE ORDER IN CRL.L.P.617/2007 Dated 22/08/2007 CC.1530/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY. .................... APPELLANT: COMPLAINANT -------------------------------- REJI P.G., S/O.GEORGE, NELLADAN HOUSE, VELLIKULANGARA, POWER OF ATTORNEY HOLDER OF BENNY M.JOSEPH, S/O.JOSEPH, MANTHANATH HOUSE, VELLIKULANGARA. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN RESPONDENTS: ACCUSED & STATE ---------------------------------------- 1. RADHAKRISHNAN KURIKKAL, S/O.KRISHNAN KURIKKAL, KILIAMMAL HOUSE, NISRAYEM THUNDIYIL, THARAPOIL, PONMARY, BADAGARA, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/03/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.157 of 2008 ------------------------------------------------ Dated this the 28th day of March, 2008 JUDGMENT The complainant in C.C.1530/03 on the file of the Judicial First Class Magistrate's Court, Chalakudy is the appellant. He assails in this appeal the order of acquittal passed by the Magistrate acquitting the first respondent of offence under Section 138 of the N.I. Act vide Section 256(1) of the Cr.P.C. The order so passed by the Magistrate is extracted below for easy reference. “The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader, the accused is acquitted under Section 256, Criminal Procedure Code.” 2. The mere absence of the complainant or his counsel is not a ground to acquit the accused and dispose of the case except of course the absence has rendered it impossible Crl. Appeal No.157 of 2008 -2- for the court below to make any progress in the case. It is not clear from the order of the Magistrate as to whether the case stood posted for evidence or whether the postings was for any other purpose or whether it is a case where the complainant was consecutively being absent for the purpose of protracting the trial of the case. Without mentioning any of those details, the learned Magistrate has acquitted the accused under Section 256(1) Cr.P.C merely recording that the complainant is not present either in person or by Pleader. It is also seen that the order is in the printed format and the learned Magistrate does not appear to have applied his mind as to the manner of disposal of the case. The disposal of the case in such a fashion is highly irregular and improper. 3. In the result, allowing this appeal I set aside the impugned order of acquittal and remit the case back to the court below for Crl. Appeal No.157 of 2008 -3- disposal afresh according to law. The appellant shall appear in the court below positively on 30/04/08 and shall continue to be present on all posting dates of the case hereafter till the case is disposed of afresh by the Magistrate. The appellant shall also take necessary steps as directed by the court below to procure the presence of the first respondent/accused as the first respondent though served has not entered appearance before this Court and consequently, he is not aware of the posting of the case in the court below on 30/04/08. Any further laches on the part of the appellant in the proper conduct of the case in the court below shall be at his own risk. 4. This appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/- Crl. Appeal No.157 of 2008 -4-