IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 CRL.A.No.234 of 2008 (D) ------------------------------ ORDER IN CRL.L.P.1293/2007 Dated 01/01/2008 CC.79/2006 of JUDL.MAGISTRATE OF FIRST CLASS, MAVELIKARA .................... APPELLANT: COMPLAINANT: --------------------------------- K.SANKARAN PILLAI, S/O.KESAVA PILLAI, KURANGATTU MATTOM NORTH, THATTARAMBALAM. BY ADV. SRI.N.SURESH RESPONDENTS: STATE AND ACCUSED: --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 2. G.JAYAKUMAR, S/O.GOPALAN, KOONALUMMOOTTIL VISHNU BHAVAN, THATTARAMBALAM P.O. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.234 of 2008 ------------------------------------------------ Dated this the 1st day of April, 2008 JUDGMENT This is appeal filed by the complainant in C.C.79/06 on the file of the Judicial First Class Magistrate's Court, Mavelikara. He assails in this appeal, the judgment passed by the Magistrate acquitting the accused under Section 255(1) Cr.P.C of offence punishable under Section 138 of the N.I. Act for the reason that there is no evidence from the part of the complainant to establish the offence. 2. It is vehemently contended by the counsel for the appellant that on 08/10/07 the day on which the judgment was passed by the court below acquitting the second respondent/ accused, the counsel for the appellant had to proceed urgently to take his sister to the Regional Cancer Centre, Thiruvananthapuram and therefore, he could not appear for the case and examine the appellant who was present in Crl. Appeal No.234 of 2008 -2- the court below and therefore, he submitted an application as C.M.P.5942/07 and it is even without mentioning the filing and the summary rejection by the Magistrate of the said application that the learned Magistrate has passed the impugned judgment acquitting the second respondent/accused on the ground that no oral or documentary evidence was adduced by the appellant to establish the culpability of the second respondent and that the adjournment sought for by the counsel was simply to drag on the matter. 3. I have perused the order sheet of the court below. It is seen that plea of the second respondent was recorded on 26/10/06. Thereafter, there were postings on 17/01/07, 23/02/07, 17/04/07, 15/05/07, 19/05/07, 21/05/07, 14/06/07, 14/08/07 and 08/10/07. Out of the above posting dates, on 21/05/07 there was no sitting and the case was being adjourned by notification to 14/06/07. On 23/02/07, the Crl. Appeal No.234 of 2008 -3- learned Magistrate was cancelling the bail granted to the second respondent as he remind absent. On 17/04/07, the case was being taken up suo motu advancing the hearing probably because arrest warrant was returned unexecuted. On 15/05/07 also there was no posting but the case was being taken up as the second respondent was arrested and produced. Again on 19/05/07, the case was being taken up advancing hearing on the application of the accused who was remanded for the purpose of granting him bail. On all other posting dates of the case or in other words on all posting dates of the case the complainant was present and without assigning any reason for adjournment though the appellant/complainant was present the case was being adjourned on 14/06/07 and 14/08/07 probably for want of time. It is in such a case that on the very next posting date on 08/10/07, the learned Magistrate has passed judgment acquitting the Crl. Appeal No.234 of 2008 -4- accused when the appellant/complainant was present and his counsel applied for an adjournment stating the reason thereof which reason the Magistrate had no reason to disbelieve had the Magistrate applied his mind. Thus, the disposal of the case by the court below is in a perverse manner and the acquittal of the second respondent under Section 255(1) of the Cr.P.C of offence under Section 138 of the N.I. Act deserves therefore, to be set aside. 4. In the result, allowing this appeal, I set aside the acquittal of the second respondent of offence under Section 138 of the N.I. Act and remit the case back to the court below for disposal afresh according to law. The parties shall appear in the court below positively on 30/04/08 and the learned Magistrate shall dispose of the case afresh according to law as early as possible and in any event within four months from 30/04/08 the Crl. Appeal No.234 of 2008 -5- date fixed for appearance of the parties in the court below unless situations are brought about by the parties disabling the Magistrate in disposing of the case within the said time. The Registry shall forward the LCR back to the court below forthwith to enable the court below to take up the case on 30/04/08. The appellant shall produce a copy of this judgment before the learned Magistrate positively on or before 30/04/08 to enable him to abide by the directions in this judgment and to dispose of the case as early as possible. K.P.BALACHANDRAN, JUDGE kns/-