IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 CRL.A.No. 194 of 2008 ------------------------------------ ST.4174/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PALAKKAD .................... APPELLANT/COMPLAINANT: DEVAPRABHA KURIES PVT. LTD., METRO BAZAR, MARKET ROAD, PALAKKAD, REPRESENTED BY MANAGER MR.A.NANDAKUMAR (AT THE TIME OF COMPLAINT) NOW REP. BY CHAIRMAN V.N.CHANDRASEKHARAN. BY ADV. SRI.A.R.GANGADAS RESPONDENTS/RESPONDENTS: 1. K.K. RADHAKRISHNAN, S/O. KUMARAN, KALLOT HOUSE, KUNDALIYOOR (P.O), ENGANDIYOOR, CHAVAKKAD TALUK, TRICHUR DISTRICT. 2. STATE OF KERALA, REP. BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA. BY PP SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 194 of 2008 --------------------------- JUDGMENT This is appeal filed by the complainant in S.T. No.4174/02 on the file of the Judicial First Class Magistrate's Court-I, Palakkad, 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, for reason of absence of the complainant. 2. It is urged by the counsel for the appellant that the learned Magistrate has improperly ignored the application filed on behalf of the appellant and acquitted the accused under Section 256(1) Cr.P.C.; that the said disposal is not justified and that the learned Magistrate has exceeded his jurisdiction dismissing the complaint, as the complainant was represented through Lawyer and an application also was filed to excuse the absence of the complainant. The application filed by the counsel for the appellant on 26.7.2003 in the court CRA 194/08 2 below, the day on which the impugned order was passed, is to the effect that the appellant is laid up on account of severe fever and body pain. It is seen that altogether six more applications were filed by the counsel for the appellant before the learned Magistrate on earlier occasions and in all those applications, same is the reason stated. The applications cover a total period of seven months from 27.1.2003. In the circumstances, the learned Magistrate had absolutely no reason to believe the request made by the counsel on the ground of illness of the appellant. 3. It is finally contended by the learned counsel for the appellant that at least one more opportunity be granted to the appellant to have his case considered on merits. I am of the view that an opportunity can be granted to the appellant to have his case considered on merits, but on heavy terms only in the background in which the learned Magistrate was constrained to acquit the accused, CRA 194/08 3 viz., under circumstances when he could not make any progress in the case by adducing evidence on account of the continuous absence of the appellant. In the result, it is ordered that in case the appellant deposits by way of cost an amount of Rs.1,500/- to the credit of the High Court Legal Services Committee and receipt is produced positively in two weeks from today, the appeal shall stand allowed and the order assailed set aside and the case remanded back to the court below for disposal afresh and in default, this appeal shall stand dismissed. In case the cost is deposited and receipt is produced within two weeks and the appeal thus stands allowed, the appellant shall appear in the court below positively on 27.5.2008 and shall continue to appear in person in the court below on all future posting dates of the case hereafter without fail till the disposal of the case by the court below. He shall also abide by all directions given by the learned Magistrate in CRA 194/08 4 the matter of taking steps to procure the presence of the first respondent in the court below, as the first respondent has not entered appearance before this Court, despite service of notice. The Registry shall forward the records back to the court below immediately after two weeks, in the event of the appeal standing allowed, so as to enable the court below to take up the case on 27.5.2008. The appeal is, thus, disposed of by way of conditional remand. 7th April, 2008 (K.P.Balachandran, Judge) tkv