IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRL.A.No.125 of 2008 (A) ------------------------------ ORDER IN CRL.L.P.164/2005 Dated 16/01/2008 ST.614/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD. .................... APPELLANT: COMPLAINANT -------------------------------- THULASEEDHARAN.S., ELIPPARAKONAM, CHIRAYIL THADATHARIKATHU VEEDU, KULAPPADA (P.O). BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENTS: ACCUSED & STATE ----------------------------------------- 1. SANALKUMAR, THERIYAMVILAKATHU VEEDU, KUKKALI, KOTTAKKAKAM, ARYANAD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.125 of 2008 ------------------------------------------------ Dated this the 19th day of March, 2008 JUDGMENT This appeal is filed by the complainant in S.T.614/03 on the file of the Judicial First Class Magistrate's Court-I, Nedumangad assailing the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 256(1) of the Cr.P.C. The order of acquittal passed by the Magistrate is extracted below for easy reference:- “The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader the accused is acquitted under section 256, Criminal Procedure Code.” 2. There is no mention in the order as to for what purpose the case stood posted on 15/01/05 the day on which the case was Crl. Appeal No.125 of 2008 -2- disposed of acquitting the accused under Section 256(1) of the Cr.P.C. The mere absence of the complainant by itself is not a ground to dispose of the case acquitting the accused. The learned Magistrate ought to have considered as to whether the absence of the complainant has rendered him unable to make any progress in the case and then only could he pass an order of acquittal for reason of absence of the complainant. The order impugned does not mention those details. It is seen on perusal of the order sheet of the court below that the presence of the accused could be procured only by resorting to steps under Section 82 and 83 of the Cr.P.C and the accused entered appearance only on 01/12/03. From 17/05/03 to 01/12/03 there were altogether seven postings and only on one occasion was the appellant absent and on all other occasions, the appellant was present. It is true that thereafter on certain postings Crl. Appeal No.125 of 2008 -3- the appellant was absent though at other posting dates he was present. The cross examination of the complainant as PW1 could not be completed and was being got adjourned on several occasions on the request of the first respondent/accused, though it is true that on a few occasions the complainant was also absent. 3. Counsel for the appellant requests for one more chance for the appellant to establish his case on merits in the court below. I am of the view after considering the several postings in the court below and the efforts made by the appellant to have his case prosecuted though occasionally he absented himself that he has to be given an opportunity to have his case considered on merits. 4. In the result, allowing this criminal appeal, I set aside the order of acquittal assailed and remit the case back to the court below for disposal afresh according to law. Crl. Appeal No.125 of 2008 -4- The appellant shall appear in the court below positively on 24/04/08 and he shall be present on all posting dates of the case hereafter till the case is disposed of by the Magistrate. The appellant may produce a copy of this judgment in the court below to have trial of the case expedited. Complying with the directions above. The appellant shall also take necessary steps to procure the presence of the first respondent/accused in the court below as he has not entered appearance before this Court despite service of notice and therefore, he is not aware of the postings on 24/04/08. Any further laches on the part of the appellant either in adducing evidence or in taking steps shall be at his risk. 5. This appeal is thus, disposed of by way of remand. K.P.BALACHANDRAN, JUDGE kns/-