IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 22ND NOVEMBER, 2011 / 1ST AGRAHAYANA ,1933 CRL.A.No. 1985 of 2011 ------------------------------- (AGAINST THE ORDER DTD.14.9.2011 IN ST NO.12/2010 0F JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOLLAM) APPELLANT(S): COMPLAINANT/PETITIONER ---------------------------------------------------------------- SAJI KUMAR, 30 YEARS, S/O.SUKUMARAN NAIR PADMA VIHAR, JANAKEEYA NAGAR, PATTATHANAM P.O., KOLLAM DISTRICT-691 021. BY ADV. SMT.MINI GANGADHARAN RESPONDENTS(S): RESPONDENT/ACCUSED AND STATE. -------------------------------------------------------------------------------- 1. ANTONY CARDOZ, 45 YEARS, BETHLAHEM, SURABHI NAGAR, NO.274/A, AYATHIL P.O., KOLLAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1985 of 2011 ---------------------------------------- Dated this the 22nd day of November, 2011 J U D G M E N T The complainant in 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 judgment dated 14.9.2011 in S.T.No.12/2010 of the court of Judicial First Class Magistrate-III, Kollam by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C. 2. In this juncture, it is relevant to note that this Court, by order dated 14.11.2011 in Crl.L.P.No.1012 of 2011, granted leave for filing appeal against the above order and thus, this appeal is coming up for admission today. 3. Leaned counsel for the appellant strenuously submitted that the trial court is also working as a Munsiff Court and the practice in the court is to the effect that the criminal matters are being called during the noon session, whereas civil matters are being called during Crl.A.No.1985 of 2011 :-2-: the forenoon session. In the present case, the impugned order was passed on 14.9.2011, during the onam vacation and on which date, there was no sitting in the trial court for the civil side and the Advocate as well as the complainant were under the impression that the criminal case would be taken only after the lunch and therefore, neither the complainant nor his counsel is present in the trial court before noon and subsequently, they came to know, when they reached in the court to attend the proceedings, that their case was called in the morning and the court acquitted the accused under Section 255(1) of the Cr.P.C. Learned counsel submitted that there was no negligence or laches either on the part of the complainant or his counsel in appearing before the court on the date of the impugned order, but it was so happened because the case was called during the forenoon session, deviating from the usual procedure adopted in the court. In order to substantiate the above contention, the learned counsel has pointed out that the copy application for the judgment was made on 14.9.2000 itself. Crl.A.No.1985 of 2011 :-3-: 4. In the light of the submission made by the learned counsel for the appellant and in the light of the facts stated in the appeal memorandum, it can be seen that though the court has taken cognizance for the offence punishable under Section 138 of the N.I.Act based upon the complaint preferred by the appellant, the accused was acquitted under Section 255(1) of the Cr.P.C. not purely on the basis of merit of the case because the complainant could not himself be subjected to cross-examination, when the case was posted for that purpose. It appears that though it is shown that PW1 is examined and marked Ext.P1 to P6, PW1 was not cross-examined and therefore, it cannot be said that his evidence is complete. 5. Having regard to the facts and circumstances involved in the case, especially in the light of the facts stated in the foregone paragraph regarding the procedure which is being adopted in the court below, I am of the view that the impugned order can be set aside and the matter can be remanded back to the trial court for further consideration after giving an opportunity to the complainant as well as Crl.A.No.1985 of 2011 :-4-: the accused to substantiate their case, including an opportunity to adduce evidence, if so required. In the result, this appeal is disposed of setting aside the judgment dated 14.9.2011 in S.T.No.12 of 2010 of the court of the Judicial First Class Magistrate-III, Kollam and the matter is remanded back to the same court and accordingly, the appellant/complainant is directed to appear before the trial court on 22.12.2011 on which date the learned Magistrate is directed to restore S.T.No.12/2010 on file and proceed with the trial of the case from the stage at which it is posted on 14.9.2011 and particularly from the stage of cross- examination of the complainant in accordance with the procedure and law and dispose of the same on merit. It is made clear that the complainant as well as the accused are free to adduce evidence, if they are so advised. This Criminal Appeal is disposed of as above. MBS/ V.K.MOHANAN, Judge Crl.A.No.1985 of 2011 :-5-: V.K.MOHANAN, J. Crl.A.No.1985 of 2011 :-6-: CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.A.No.1985 of 2011 :-7-: