IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 CRL.A.No. 1257 of 2007() ------------------------ CC.281/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... APPELLANT: APPELLANT/COMPLAINANT -------------------------------- M/S VENUGOPAL CHITS, CHALAKUDY, REPRESENTED BY ITS PROPRIETOR, M.A.MANOHARAN, AGED 71, S/O ACHUTHAN, MUZHITHOTTIPARAMBIL, EAST CHALAKUDY. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENTS: ACCUSED & STATE ---------------------------- 1. M.L.BABU, S/O LONAPPAN, AGED ABOUT 38, MANDI VEDU, MANDIKUNNU, P.O.MURUNGOOR, CHALAKUDY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON 29/07/2008 DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal No.1257 of 2007 ------------------------------------- Dated this the 29th day of July, 2008 J U D G M E N T This Appeal under Section 378(4) Cr.P.C has been filed by the appellant after obtaining the requisite leave to assail the dismissal of the complaint filed by him under Section 138 of the Negotiable Instruments Act and the consequent order of acquittal passed under Section 256 Cr.P.C. 2. Cognizance was taken of the offence under Section 138 of the Negotiable Instruments Act allegedly committed by the appellant in respect of a cheque for an amount of Rs.49,000/-. Cognizance was taken on 28.02.04. Thereafter, the case was adjourned from time to time. There were as many as 14 postings in all. On many of the days, complainant and the accused were personally present. On some days, they were absent. On some days they were represented. Be that as it may, the case was posted on various dates and finally to 10.10.06 on 21.07.06. According to the appellant, the date of posting was noted by the parties as 11.10.06, though certified copy of the order sheet now shows that the case was posted to10.10.06. Crl.Appeal No.1257 of 2007 2 3. When the case was called on 10.10.06, the accused was absent. The complainant was absent. There was no representation for either. Counsel were also absent. It is, in these circumstances, that the learned Magistrate proceeded to dismiss the complaint invoking the jurisdiction under Section 256 Cr.P.C. 4. The learned counsel for the appellant submits that there was some confusion about the date to which the case was posted. It has led to the situation of neither the accused nor the complainant or even their counsel being asbent before court when the case was taken up on 10.10.06. The complainant was always interested in prosecuting his complaint. Cognizance having already been taken, there is no reason why the complainant would have been not interested in prosecuting his complaint. The cheque is for an amount of Rs.49,000/- and he had prosecuted the complaint with due diligence till 10.10.06. His absence on that day was not wilful or intentional. Copy of the order sheet has been placed before me and that shows that on 10.10.06 there was no representation for either side and both the complainant and the accused were absent. It is also relevance to note that when the case was adjourned from 21.07.06 to 10.10.06, there was no specific direction that the case shall be taken up for trial Crl.Appeal No.1257 of 2007 3 on the next date of posting nor was there a direction to the complainant or the accused to be present to commence trial in the case. 5. The respondent/accused has been served. There is no appearance for the respondent in spite of due service. I have considered all the relevant circumstances. I take note of the crucially relevant circumstance that there was no specific posting to 10.10.06 to commence trial. A specific direction that trial shall commence on that day was not issued. On probabilities the submission of the counsel for the appellant that there was some confusion regarding the date of posting also appears to be acceptable as the accused, the complainant as also their counsel were all absent on 10.10.06. 6. Taking all the relevant circumstances into account, I am satisfied that a lenient view can be taken. The case of the appellant/complainant can be accepted and the complainant can be given a further opportunity to prosecute his complaint. There is nothing to lead this Court to the inference or conclusion that the complainant was not interested in prosecuting his complaint- except his absence on 10.10.06. Crl.Appeal No.1257 of 2007 4 7. In the result: i) This Criminal Appeal is allowed; ii) The impugned order of acquittal under Section 256 Cr.P.C is set aside; iii) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law; 8. Hand over a copy of this judgment to the learned counsel for the appellant. 9. The appellant/complainant shall appear before the learned Magistrate on 25.08.08 to continue the proceedings. The learned Magistrate shall issue processes to the accused as he is not represented before me at the stage of disposal. (R.BASANT, JUDGE) rtr/-