IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 CRL.A.No. 643 of 2010 ------------------------- (AGAINST THE ORDER IN CRLP.237/2010 Dated 09/03/2010 ST.751/2008 of JUDL. MAGISTRATE OF FIRST CLASS, KOTTAYAM) .................... APPELLANT(S): APPELLANT/COMPLAINANT ----------------------------------------------- A.S.AJITHKUMAR, MONIPPALLY HOUSE, POOVARANI KARA, MEENACHIL, NOW RESIDING AT MONIPPALLY HOUSE, KOOROPPADA, PAMPADY. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU RESPONDENT(S): ACCUSED & STATE ----------------------------------------- 1. VINOD.S.NAIR, S/O.P.N.SASIDHARAN NAIR, KRISHNA SADAN HOUSE, ELAMPALLY KARA, ANICKAD VILLAGE, KOTTAYAM. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 643 of 2010 --------------------------------------------- Dated this the 6th day of April, 2010 J U D G M E N T The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order of acquittal recorded by the trial court under Section 256(1) of the Criminal Procedure Code (for short 'the Cr.P.C.). 2. Learned counsel for the appellant submitted that after filing the complaint, the appellant was vigilantly prosecuting the complaint and the accused has not so far entered appearance and he is absconding. Under the above circumstances, the order of the learned Magistrate is not justifiable. 3. I have perused the order impugned from where it can be seen that the cheque in question Crl.ANO. 643 of 2010 :-2-: covers an amount of Rs.2 lakhs and the accused is absconding. It goes without saying that as the accused is absconding, no effective trial can be held and therefore, even if the complainant was absent, the impugned order is not justifiable and the learned Magistrate ought to have adjourned the case and to ensure the presence of the accused by issuing appropriate steps. It is also submitted by the learned counsel that though Non Bailable Warrant was issued against the accused, the same was not executed. Learned counsel also submitted that the counsel of the complainant was absent on 22.12.2008 since the Clerk of the counsel committed a mistake in noting down the posting date. 4. From the above facts, it is crystal clear that the court below was bound to take steps as envisaged by the Code of Criminal Procedure (for short 'the Cr.P.C.') for procuring the presence of the Crl.ANO. 643 of 2010 :-3-: accused. Even otherwise, the order of the learned Magistrate is not justifiable in the light of the decisions reported in Alice George v. Deputy Superintendent of Police (2003(1) KLT 339) and Don Bosco v. Partech Computers Ltd. (2005(2) KLT 1003). Therefore, the learned Magistrate ought not have acquitted the accused under Section 256(1) of the Cr.P.C. In the result, this Criminal Appeal is allowed setting aside the order dated 22.12.2008 in S.T.No.751 of 2008 of the Judicial First Cass Magistrate's Court-I, Kottayam. Accordingly, the appellant/complainant is directed to appear before the court below on 6.5.2010 on which date the court below is directed to restore the complaint on file and to proceed with the same in accordance with law and procedure and to dispose of it on merit. Crl.ANO. 643 of 2010 :-4-: The Criminal Appeal is allowed accordingly. V.K.Mohanan, Judge MBS/ Crl.ANO. 643 of 2010 :-5-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------- ----------- J U D G M E N T DATED: -2- Crl.ANO. 643 of 2010 :-6-: 2010