IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 CRL.A.No. 2030 of 2006 (CC.454/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA) .................... APPELLANT/COMPLAINANT: ---------------------------------- K.V.MATHEW, MANAGING PARTNER, KARITHADATHIL INVESTORS, PIRAVOM, ERNAKULAM DISTRICT. BY ADV. SRI.S.K.AJAY KUMAR RESPONDENTS/ACCUSED AND STATE: ----------------------------------------------- 1. K.C.PAULOSE, KALARICKAL HOUSE, PIRAVOM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No.2030 of 2006 --------------------------------------------- Dated this the 11th day of November, 2008 J U D G M E N T This appeal is preferred by the appellant/complainant in C.C.No.454 of 2003, aggrieved by the order passed by the court below under Section 256(1) of the Code of Criminal Procedure, acquitting the accused. 2. The case of the complainant is that the accused borrowed a sum of Rs.2,68,745/- and towards the discharge of the said debt, the accused issued cheque dated 23.1.2003 towards the said debt and when the said cheque was presented for encashment, it was dishonoured on the ground 'funds insufficient'. After compliance of the statutory formalities, the complainant approached the court below by filing a complaint upon which the court below took cognizance and instituted C.C.No.454 of 2003. As per the averments in the appeal memorandum and the submission of learned counsel for the appellant, it appears that the complainant had filed a proof affidavit on 6.9.2005 and the case was thereafter adjourned to 14.11.2005 for the cross-examination of the complainant. As the court was holding no sitting on 14.11.2005, the case was adjourned and thereafter, though the case was posted Crl.A.No.2030 of 2006 :-2-: regularly, but being adjourned. Thus it can be seen that the above case stood posted on 14.11.2005, 21.11.2005, 12.12.2005 and 14.2.2006 and also 26.5.2006. The learned counsel submits that on all these days, there was no sitting. From 26.5.2006, the case was adjourned to 29.7.2006 as last chance. 3. Thus when the matter was taken on 29.7.2006, as revealed from the order under challenge, though the complainant was absent, he was represented. It is also noted that the accused was present and the case was posted for evidence as last chance. After stating the above facts, the Magistrate had dismissed the complaint and acquitted the accused under Section 256(1) of the Code of Criminal Procedure. 4. The learned counsel submits that on 29.7.2006, the complainant did not appear, because the counsel for the complainant was not present as he was engaged in the Magistrate Court at Adimali. It is also submitted by the learned counsel that stating the reason of personal and professional inconvenience of the counsel, a petition was filed seeking adjournment. But the same was neither received nor considered by the learned Magistrate. As per the order of the learned Magistrate itself, it is clear that though the complainant was Crl.A.No.2030 of 2006 :-3-: absent, he was represented. According to the appeal memorandum and the submission of the learned counsel for the appellant, the adjournment was sought on the ground of professional inconvenience of counsel appearing for the appellant and to that effect, an application has been filed which was not accepted by the court below. It is also stated in the appeal memorandum that counsel informed the complainant that the matter would be got adjourned. Probably, it is for that reason, the complainant was absent on 29.7.2006. 5. Thus, it can be seen that though the case was continuously posted from 14.11.2005, nothing was materialised as there was no sitting. Regarding the posting on 29.7.2006, the complainant was informed that the matter would be adjourned as the counsel for the appellant/complainant has professional inconvenience. From the above facts, it can be seen that there is no fault on the part of the complainant in appearing before the court below and prosecuting the complaint and extending co- operation for the disposal of the case. As observed earlier, the amount covered by the cheque in question will come to the tune of Rs.2,68,745/-. It is also relevant to note that the case adjourned to 29.7.2006 from 26.5.2006 and there was a gap of Crl.A.No.2030 of 2006 :-4-: two months between the above two dates and in the mean while, the learned counsel for the complainant had to attend the Magistrate Court at Adimali. From the above facts, it appears to me that there are no laches or negligence on the part of the appellant/complainant in appearing before the court below and subjecting himself to cross-examination, but his absence was due to professional inconvenience of counsel for the complainant. Except the reason that the case was posted for evidence as last chance, no other reasons are given by the learned Magistrate to pass an order under Section 256(1) of CrP.C. Therefore, the above order is liable to be set aside. 6. In the result, the impugned order of the learned Magistrate dated 29.7.2006 in C.C.No.454 of 2003 is set aside. The complainant is directed to appear before the court below on 11th December, 2008 on which date the court below is directed to take the complaint on file and to proceed with in accordance with law and procedure, after securing the presence of the accused and dispose of the same on merits. The appeal is disposed of as above. MBS/ V.K.Mohanan, Judge. Crl.A.No.2030 of 2006 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- Crl.A.No.2030 of 2006 :-6-: O R D E R DATED: -9-2008 Crl.A.No.2030 of 2006 :-7-: