IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.A.No. 2418 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.646/2006 Dated 05/12/2006 ST.249/2004 of JFMC-III, KOCHI .................... APPELLANT(S): COMPLAINANT ------------------------- M/S.METROTEX, A DIVISION OF M/S.METRO, ERNAKULAM, REPRESENTED BY ITS PARTNER, SHRI.K.N.MARZOOK. BY ADV. SRI.TOM K.THOMAS RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.U.JISAM, PROPRIETOR, GALAXY SHOPPING CENTRE, GALAXY BLDG., STAR JUNCTION, MATTANCHERRY, KOCHI-682 002. R1 BY PUBLIC PROSECUTOR SMT. K.L.LAKSHMI RANI ADV. SRI.SHIRAZ ABDULLA FOR R.2 SRI.IMTHIYAZ AHAMED FOR R.2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No. 2418 OF 2006 ------------------------------- Dated this the 22nd September, 2008. JUDGMENT This appeal is preferred by the complainant in S.T.249/2004 on the file of the Judicial First Class Magistrate Court-III, Kochi challenging the order of acquittal passed by the court below under Section 256(1) Cr.P.C. 2. The above case is instituted upon a private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act wherein the amount involved as per the dishonoured cheque is Rs. 1 lakh. Reiterating the averments contained in the appeal memorandum counsel for the appellant submitted that originally the matter stood posted for evidence on 16.9.2006, on which date an application was filed by the counsel for the complainant for correction in the cause title. It is also the case of the complainant and the counsel that on 16.9.2006 the accused submitted that they are ready to settle the matter along with the connected case viz., S.T.447/2004 and sought one month's time for effecting settlement. Accordingly the case was adjourned to Crl. Appeal No: 2418/2006 2 26.10.2006 for evidence. It is the further case of the appellant that on that day the complainant as well as the counsel for the complainant though went to attend the court at Kochi they could not reach the court in time due to traffic block and actually they could reach the court only by 11.30 a.m, in the meanwhile the case was already called and an order was passed by the learned Magistrate under Section 256(1) of Cr.P.C. It is also stated that though representation was made in the open court, the learned Magistrate expressed his inability to review the order passed under Section 256 (1) Cr.P.C. It is submitted that there was no wilful latches either on the part of the complainant or on his counsel to appear before the court in time. Though counsel for the appellant submitted that there was a traffic block in reaching the court in time, it is for the complainant and his counsel to make arrangement to reach the court at an earlier time, who are aware of the traffic block that being occurred in the city. However, court cannot ignore and there shall not be any failure to take notice of the fact that in the city now-a-days traffic block are frequently occurred. As the disposal of the case is not on merits, it is only just and proper to have a decision on merits in the matter. Therefore, in the interest of Crl. Appeal No: 2418/2006 3 justice, I am of the view that this appeal can be allowed on terms and the parties can be given one more opportunity. In the result this appeal is allowed and the appellant is directed to deposit a sum of Rs.1,000/- (Rupees one thousand only) in the court, which shall be paid to the State exchequer and the court is directed to take the complaint on file and dispose the same on merits. The parties are directed to appear before the court on 31.10.2008. V.K.MOHNANAN JUDGE jj