IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CRL.A.No. 1712 of 2007 -------------------------------------- CC.155/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT/COMPLAINANT: NOORDHIN, S/O.KATHAR, CHAVAKKAD AMSOM, CHAVAKKAD TALUK. BY ADV. SRI.RAJIT RESPONDENT/ACCUSED: P.K.AYOOB, AYOOBKHAN, S/O.ALI, PANIKKA VEETTIL, THAMARATH, P.O.CHAVAKKAD. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1712 of 2007 --------------------------- JUDGMENT Service is complete. But the first respondent has not entered appearance. Heard the counsel for the appellant and the learned Public Prosecutor. 2. The appeal is filed against the acquittal of the first respondent under Section 256(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act for reason of absence of the complainant and his counsel. The reason for the absence, stated in the appeal memorandum, is the following: “The case was posted from 22.6.2000 to 2.9.2000. However, the Clerk of the counsel for the complainant wrongly noted the date as 2.11.2000. Hence, when the case was called on 2.9.2000, there was no representation for the complainant either by himself or by his counsel. Accordingly, the court was pleased to acquit the CRA 1712/07 2 accused under Section 256(1) Cr.P.C.” There is no whisper as to the name of the concerned Clerk and whose Clerk was it or as to the counsel, who engaged that Clerk. Without disclosing any of these details, an ingenious attempt is made to somehow see that the complaint is brought back to file and kept pending. The case is of the year 2000. When the appellant/complainant is not interested in prosecuting the matter, especially when it is seen that from 2.9.2000, the date on which the order of acquittal was passed, despite filing the leave petition and the appeal, the counsel for the appellant left the proceedings before this Court dormant and did not want the matter to be taken up and that has caused delay of more than six years, there is, absolutely, no reason to allow the appeal and to have the order of acquittal set aside. CRA 1712/07 3 3. A fervent plea is finally advanced by the counsel for the appellant pointing out that the stakes involved is as much as Rs.90,000/- and an opportunity be afforded to the appellant at least on terms to have his case considered on merits by the court below. In the result, I order that this appeal shall stand allowed and the case remitted back to the court below setting aside the order of acquittal in case an amount of Rs.5,000/- is deposited to the credit of Kerala Legal Services Authority and receipt evidencing such deposit is produced within ten days from today. In case of failure, this appeal shall stand dismissed. Report compliance on 19.2.2008. 6th February, 2008 (K.P.Balachandran, Judge) tkv CRA 1712/07 4 K.P.Balachandran, J. --------------------- Crl.A.No.1712 of 2007 --------------------- JUDGMENT 6th February, 2008