IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 CRL.A.No. 239 of 2008 ------------------------------------ CC.334/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... APPELLANT/COMPLAINANT: BABY JOSEPH, AGED 27 YRS., S/O.JOSEPH MANDAPAM P.O., CHITTARICKAL VILLAGE HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT/ACCUSED: K.P. PRAKASHAN, AGED 34 YRS. S/O.ACHUTHAN, CAZHAYIL HOUSE, VALLIYAD, KEEZHUR P.O., IRITTY 670703 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 239 of 2008 --------------------------- JUDGMENT This is appeal filed with leave by the complainant in C.C.No.334/01 on the file of the Judicial First Class Magistrate's Court-II, Hosdurg assailing the acquittal of the first respondent under Section 256(1) Cr.P.C. of offence punishable under Section 138 of the Negotiable Instruments Act. 2. The impugned order reads as follows: “The case was called on for hearing today to which it had been posted/adjourned. The complainant not being present either in person or by pleader the accused is acquitted under Section 256 Cr.P.C.” There is no mention as to for what purpose the case stood posted in the court below on 22.10.2002, the date on which the case was disposed of acquitting CRA 259/08 2 the first respondent. Absence of the complainant by itself is no reason to acquit the accused under Section 256(1) Cr.P.C., unless, of course, his absence disabled the court from making any progress in the case. The impugned order does not make mention of any such event. Counsel for the appellant prays for a chance for the appellant to have his case decided on merits. The circumstances of the case suggest that the appellant has to be granted an opportunity to have his case established on merits. In the result, allowing this appeal, I set aside the impugned order and remit the case back to the court below for disposal afresh according to law. Appellant shall appear in the court below positively on 29.4.2008 and shall continue to appear on all posting dates of the case hereafter without fail. He shall also take necessary steps as ordered by the court below to procure the presence of the first respondent in the court CRA 259/08 3 below, as he has not entered appearance before this Court. Any further laches on the part of the appellant in the conduct of this case shall be at his own risk. Registry shall forward the lower court records forthwith to the court below so as to enable the learned Magistrate to take up the case on 29.4.2008 itself in compliance with this judgment. Appellant shall be at liberty to produce a copy of this judgment before the learned Magistrate to enable him to comply with the above directions and to have the case disposed of at the earliest. 26th March, 2008 (K.P.Balachandran, Judge) tkv