IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 CRL.A.No.154 of 2008 (D) ------------------------------ AGAINST THE ORDER IN CRL.L.P.61/2008 ST.1137/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA. .................... APPELLANT: COMPLAINANT: --------------------------------- V.G. DHARMARAJAN, SECRETARY, VARANDARAPPILLY GRAMA PANCHAYAT. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS: ACCUSED & STATE: ------------------------------------------ 1. SOMAN, S/O. MANIKKAN, CHULLIPARAMBIL HOUSE, P.O. VARANDARAPPILLY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.154 of 2008 ------------------------------------------------ Dated this the 17th day of March, 2008 JUDGMENT This appeal is filed with leave assailing the order of acquittal of the first respondent of offence under Section 138 of the N.I. Act vide Section 256(1) of the Cr.P.C. The impugned order reads as follows:- “The case was called on for hearing today to which it had been adjourned. The complainant not being present either in person or by pleader, the accused is acquitted under section 256, Criminal Procedure Code.” 2. It is not clear from the order as to for what purpose the case stood posted in the court below and as to whether the absence of the appellant disabled the learned Magistrate from making any progress in the trial of the case. The order of acquittal has been passed almost mechanically without applying mind to the factual situation as seen from the Crl. Appeal No.154 of 2008 -2- impugned order. The counsel for the appellant, however, prays for a chance for the appellant to have his case considered on merits by the court below. 3. I am of the view that in the nature in which the learned Magistrate has disposed of the case the order impugned has to be set aside affording an opportunity to the appellant to have his case considered by the Magistrate on merits. 4. In the result, I set aside the order assailed and remit the case back to the learned Magistrate for disposal afresh according to law. It is made clear that the appellant shall hereafter appear in the court below invariably on all posting dates of the case without fail and shall take steps as ordered by the Magistrate to get down the presence of the first respondent/accused as he has not entered appearance before this Court. Crl. Appeal No.154 of 2008 -3- The learned Magistrate shall be at liberty to dispose of the matter according to law, in the event of the appellant not being present or is not taking steps for the proper conduct of the case hereafter. The appellant is directed to appear before the learned Magistrate positively on 17/04/08. Appellant to produce a copy of this judgment before the learned Magistrate to enable him to have the case taken up on 17/04/08. 5. The appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-