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. 1916 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.10/2005 Dated 07/06/2005 CC.763/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT: COMPLAINANT: -------------------------- M/S. SUN PACKERS, J.D.P., POOVANTHURUTHU, KOTTAYAM-12, REPRESENTED BY V.E. MATHEW, MANAGING PARTNER. BY ADV. SRI.LIJI.J.VADAKEDOM RESPONDENT(S): STATE AND ACCUSED: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S. DHARMARAJ, KOTTARATHIPARAMBIL, KODIMATHA, KOTTAYAM. R1 BY PROSECUTOR SMT. K.L.LAKSHMI RANI 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. 1916 OF 2006 ------------------------------- Dated this the 22nd September, 2008. JUDGMENT The case of the appellant is that he had preferred a complaint for an offence under Section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate-II (Mobile), Kottayam against the second respondent-accused on the allegation that the cheque in question issued by the second respondent-accused for an amount of Rs.32,425/- was dishonoured. On the basis of the above complaint the court took cognizance and instituted C.C.763/04. The case stood for offence on 14.9.2004 which was disposed of by the court below by impugned order acquitting the accused under Section 256(1) Cr.P.C. It is the above order challenged in this appeal. 2. I have heard counsel for the appellant. 3. Reiterating the contentions raised in the appeal, the counsel submitted that the complainant could not appear before the court below on 14.9.2004 as he was laid up due to viral fever and his inability has already been informed to his counsel and according Crl. Appeal No: 1916/06 2 to the complainant his counsel he has assured that an application will be filed for and on behalf of the complainant. It is the further case of the complainant that the counsel did not make any arrangement either to make representation in the court or to file petition to excuse his absence at the time of calling the case and accordingly the case was disposed of by the court below as per the impugned order. 4. On a perusal of the impugned order it can be seen that the case was posted on 14.9.2004 specifically with endorsement that no further time will be granted. It is also clear from the order that the accused was present to proceed with the case but the complainant was absent and no petition was filed to excuse his absence. So the order of the court below cannot be said as illegal. In the absence of the complainant or in the absence of a petition to excuse his absence the court has no option but to proceed in accordance with the provisions of the statute. But from the facts involved in the case it can be seen that the amount covered by the cheque is about Rs.32,425/- and there is no finding on merit with respect to the allegations. It is also pointed out by the counsel for the appellant that the complainant was physically unable to attend the court on Crl. Appeal No: 1916/06 3 that particular day as he was laid up due to viral fever and he had taken earnest steps to get exempted his presence through his counsel. But it appears that no arrangement was made on behalf of the complainant. Therefore, even if there is any fault on the part of the counsel, there is no meaning in punishing the complainant for the same. Therefore, for the ends of justice, it appears to me that one more chance be given to the complainant to substantiate his grievance and to proceed the complaint. . In the result this appeal is allowed and the court below is directed to take the complaint on file and to proceed in accordance with law and to dispose the matter on merits. The parties are directed to appear before the court below on 31.10.2008. V.K.MOHANAN JUDGE jj