IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 24TH SEPTEMBER, 2008 / 2ND ASWINA, 1930 CRL.A.No. 2391 of 2006 (AGAINST THE ORDER IN C.C.No.595/2005 dtd.29.5.2006 of JUDL..MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... APPELLANT/COMPLAINANT: --------------------------------- BHADRA SANKAR, AGED 29, D/O.INDIRA DEVI KUNJAMMA, NALLAVEETTIL, MANJADITHARA MURI, BHARANIKKAVU VILLAGE. BY ADV. SRI.K.HARILAL RESPONDENT(S)/ACCUSED AND STATE: ------------------------------------------------ 1. CHANDRIKA, AGED W/O.KRISHNANKUTTY, SOUPARNIKA, MARUTHURKULANGARA THEKKUM MURI, AYANIVELIKULANGARA VILLAGE, ALUMKADAVU, KARUNAGAPPALLY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.SUBASH CHANDRA BOSE FOR R1. BY PUBLIC PROSECUTOR SRI.P.A.SALIM FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 2391 of 2006 - D --------------------------------------------- Dated this the 24th day of September, 2008 J U D G M E N T The appellant, who is the complainant in C.C.No.595 of 2005 on the file of the Judicial First Class Magistrate Court, Kayamkulam, challenges the order dated 29.05.2006 of the court below passed under Section 256(1) of the Code of Criminal Procedure acquitting the accused. 2. C.C.No.595 of 2005 was instituted upon a complaint filed by the appellant for the offence under Section 138 of the Negotiable Instruments Act connected with the dishonour of a cheque covered by an amount of Rs.2 lakhs. The impugned order of the learned Magistrate was passed on 29.05.2006 on which date there was a specific direction to the complainant to present on that day. The impugned order shows that the accused was present and the complainant was also present at the time of roll call. But the reason stated for passing an order under Section 256(1) of the Code of Criminal Procedure is Crl.Appeal No. 2391 of 2006 :-2-: that when the case was subsequently called for evidence, the complainant was absent though accused was present. To a question posed by this Court, counsel for the appellant submits that the counsel for the complainant was present and he sought some more time since the complainant went for having a tea when the case was called by the second time. 3. However, it appears from the order that the complainant was present in the court on the date on which it was posted for evidence and she was not available when the case was called subsequently, but she was represented even at that time. If that be so, it appears to me that the order under Section 256(1) of Cr.P.C. is not warranted. It is also a fact that the complaint is with respect to the dishonour of a cheque for an amount of Rs.2 lakhs and there is no adjudication on merit regarding those disputes and allegations. It is also brought from the records that the accused who is a lady of 50 years was present through out the proceedings who was ready to co-operate with the trial, Crl.Appeal No. 2391 of 2006 :-3-: but the complainant was not present at the appropriate time. Therefore, according to me, the interest of justice will be served by directing the appellant/complainant to pay a sum to the accused as cost as a condition to take up the complaint again on file and to proceed and dispose of the same on merits. 4. In the result, this appeal is allowed. The appellant/complainant is directed to pay a sum of Rs.1500/- to the accused towards cost and on payment of such cost, the court below is directed to take the case on file and proceed with the same and dispose of it in accordance with law on merit. The parties are directed to appear before the court below on 31st October, 2008. V.K.Mohanan, Judge MBS/ Crl.Appeal No. 2391 of 2006 :-4-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- Crl.Appeal No. 2391 of 2006 :-5-: O R D E R DATED: -9-2008 Crl.Appeal No. 2391 of 2006 :-6-: