IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 CRL.A.No. 129 of 2010() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRL.L.P.43/2010 Dated 15/01/2010 STC.1375/2009 of ADDL.CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY .............................................................................. APPELLANT(S): PETITIONER/COMPLAINANT -------------------------------------------------------------- J.MARYKUTTY, W/O.BALAKRISHNAN, AGED 49 YEARS, SECRETARY, PERALASSERY GRAMA PANCHAYATH, P.O.MUNDALOOR, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): ACCUSED/STATE --------------------------------------------------- 1. K.JAYARAJAN, OWNER AND PROPRIETOR OF P&P FURNITURE WORKS, RESIDING AT SARADA NIVAS, P.O.MAVILAYI, PERALASSERY, KANNUR DISTRICT, (WITHIN EDAKKAD POLICE STATION LIMITS). 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.S.HRITHIK, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.129 of 2010 ------------------------------- Dated this the 16th day of March, 2010. J U D G M E N T This appeal is preferred against the order passed by the Addl.Chief Judicial Magistrate Court, Thalassery, in S.T.C.1375/09 by which the accused, against whom the complaint was filed by the appellant u/s.232, 233 and 257 of the Kerala Panchayatraj Act and Section 188 of IPC, is acquitted u/s.256(1) of Cr.P.C. 2. The allegation against the complainant was that the accused is running an establishment namely P&P Furniture wherein he is conducting large scale carpentry work in the shed attached to his house bearing door No.III/524, using electric motors and other electrical implements without acquiring appropriate permission from the Panchayat. It is also an allegation that by such work it had caused air pollution and sound pollution and causing hardship to the neighboring people. Though notice was issued to the 1st respondent/accused, to close down the business within the time period stipulated but the Crl. APPEAL No.129 of 2010 2 accused refused to obey such statutory direction. It was under the above circumstances a complaint was filed by the Panchayat representing through its Secretary. 3. It appears that cognizance was taken upon the said complaint on 1.10.2009 and thus posted the case to 4.11.2009 for the appearance of the accused but he was absent. The learned Magistrate acquitted the accused, u/s.256(1) of Cr.P.C., as the complainant was absent on that date, which is the impugned order in this appeal. 4. The learned counsel for the appellant submitted that, though the complainant was absent on 4.11.2009, he was represented through the junior counsel attached to the office of the counsel for the complainant and the complainant was adequately represented, but the Court below omitted to take note of the above fact. The learned counsel also pointed out that, by making available to me the summons dated 31.10.2009, issued from the said court purportedly to summons the accused wherein the name of the accused is not shown but the date of Crl. APPEAL No.129 of 2010 3 appearance shown as 4.11.2009. It is also the submission of the learned counsel that, the summons and the duplicate copy of the summons were directly sent to the complainant, from the office of the Court and the cover containing the summons seen posted in Thalassery Post Office on 3.11.2009, in the address of the complainant. According to the learned counsel, such a cover was received by the complainant only on 9.11.2009, though the date fixed for the appearance of the accused was shown as 4.11.2009 and the summons was issued on 31.10.2009. 5. On the basis of the above facts which brought to the notice of this Court on the previous posting date of the case, as directed by this court, the Registry of this court sought explanation from the Addl.C.J.M., Thalassery, with respect to the above matrix and it is reported that, in the court below there is no such practice of sending summonses in cases filed under Panchayatraj Act through the complainant and it is so happened because the clerk who is in charge of the Process section was a Crl. APPEAL No.129 of 2010 4 newly appointed one and her in-experience caused for the mistake mentioned in the memo. It is also brought to the notice of this court that, an explanation was called for further action, from the concerned staff and it is assured that such instance will not be repeated in future. 6. However, due to the improper proceedings adopted with respect to the service of summons on the accused, which is a fault not on the part of the complainant, resulted in an order by which the court below acquitting the accused u/s.256(1) of Cr.P.C. . It is also relevant to note that, though cognizance was taken upon the complaint preferred by the appellant, the impugned order was happened to be issued because of the wrong proceedings adopted by the staff in the Registry of the Court below and therefore there is no decision of merits upon the complaint preferred by the appellant. Therefore the impugned order is liable to be set aside. Crl. APPEAL No.129 of 2010 5 7. As the accused has not so far appeared before the court below as no summons was served on him, I am of the view that the accused/respondent need not hear at this stage. In the result, this criminal appeal is allowed setting aside the order dated 4.11.2009 in S.T.C.1375/09 of the Court of Addl. CJM, Thalassery, and the court below is directed to restore the complaint on file on the date of appearance of the complainant, who is directed to appear before the court below on 19.4.2010, and to proceed with the complaint in accordance with the procedure and after securing the presence of the accused, dispose the same on merit. Criminal appeal is allowed accordingly. V.K.MOHANAN, Judge. ami/