IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 CRL.A.No. 105 of 2003() -------------------------------- CC.329/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT(S): COMPLAINANT ------------------------- VARGHESE S/O. CHOWALLUR CHERUNNI MAMMIYOOR DESOM, GURUVAYOOR VILLAGE, CHAVAKKAD TALUK BY POWER OF ATTORNEY ELAVATHOOR DESOM, ANNAKARA VILLAGE ODAT KUTTAPANS SON SOMAN. BY ADV. MR.RAJIT RESPONDENT(S): ACCUSED ---------------------- 1. DESAN, S/O. INIPPULLY VASU MULLASSERY VILLAGE, DESOM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. MR.K.ANAND FOR R1 BY PUBLIC PROSECUTOR MR.C.M.NAZAR FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------- Crl.Appeal No.105 of 2003 - A --------------------------------- Dated this the 31st day of March, 2009 J U D G M E N T Challenging an order passed by the court below under Section 256(1) of Cr.P.C, acquitting the accused in a prosecution for offence punishable under Section 138 of the Negotiable Instruments Act, the complainant preferred this appeal. 2. It is stated that there was no willful laches or negligence from the part of the complainant in appearing before the court below on the date of the impugned order, but he was bitten by a mad dog and consequently, an application was filed to excuse his absence on that day and the same was not considered. Therefore, it is prayed that an opportunity may be granted to the complainant to prosecute the complaint. 3. I have heard the learned counsel appearing for the appellant as well as the respondent. 4. The case No.329/2000 is instituted upon a private complaint preferred by the appellant for the offence punishable under Section 138 of the Negotiable Instruments Act with the Crl.Appeal No.105 of 2003 - A 2 allegation that a cheque which issued by the accused for an amount of Rs.27,000/- was dishonoured for want of sufficient funds in the account of the accused. According to the appellant, he was vigilantly prosecuting the complaint from the date of cognizance. It is his further case that on 10.5.2002, when he was going to the court to attend the case, he was bitten by a mad dog and as a result of which he had undergone treatment and the said fact was informed to his counsel. Consequently, his counsel moved an application as M.P.No.7789/2002 to excuse his absence wherein the above reason was shown. The learned counsel for the appellant made available to me a certified copy of the order. On a perusal of the said petition, it can be seen that his absence was sought to be condoned on the above ground. 5. Going by the impugned order it can be seen that the case was taken on file on 5.5.2000 and the accused entered appearance on 3.2.2001. It is also discernible from the order that the complainant has failed to appear before the court. Thus the case was adjourned to 10.5.2002 as the last chance for the appearance of the complainant for recording his evidence. On Crl.Appeal No.105 of 2003 - A 3 that day, the complainant is absent. Going by the above reasoning of the court below, it appears that the learned Magistrate has issued such an order as the case pertains to the year 2000 wherein the date of offence is shown as early as on 1.3.1999. Therefore, it cannot be said that the order of the court below is incorrect or illegal. However, it is brought to my notice that the absence of the complainant was due to unavoidable situation and hence arrangement was made by way of an application to excuse his absence which was considered by the court below, but rejected. It is not a case where there is no representation at all, even though the complainant was absent. The absence was also not willful, but due to the reason which is beyond his control. It is also to be considered that the amount involved is a sum of Rs.27,000/- and because of the impugned order there is no decision on merit. Under the above circumstances, I am of the view that an opportunity can be given to the complainant to prosecute the complaint and to have a decision on merit, but of course subject to terms. Crl.Appeal No.105 of 2003 - A 4 6. In the result, the judgment dated 10.5.2002 in case No.329/2000 on the file of the Judicial First Class Magistrate Court, Chavakkad is set aside, on condition that complainant paying a sum of Rs.1,000/- to the court below, out of which Rs.500/- shall be given to the accused and Rs.500/- shall be deposited to the State exchequer. 7. Accordingly, this appeal is allowed directing the parties to appear before the court below on 30.4.2009 on which date the court below is directed to take the complaint and on satisfaction regarding the payment of the amount as directed above, the court is further directed to proceed with the complaint and dispose of the same on merit, as expeditiously as possible, as the case pertains to the year 2000. V.K.MOHANAN, JUDGE. bkn/-