IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 CRL.A.No. 313 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1024/2007 Dated 11/10/2007 CC.879/2000 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... APPELLANT: DECEASED COMPLAINANT-LR'S OF THE COMPLAINANT ------------------------------------------------------- 1. M.M.JOSEPH (DIED), MOOTHODATHU HOUSE, PIZHAKU P.O. 1. DEEPA SANTHOSH, D/O.M.M.JOSEPH, MOOTHODATHU HOUSE, PIZHAKU P.O. 2. DILEEP J. MOOTHEDAM, S/O.M.M.JOSEPH, MOOTHODATHU HOUSE, PIZHAKU P.O. 3. DENOY J. MOOTHEDAM, S/O.M.M.JOSEPH, MOOTHODATHU HOUSE, PIZHAKU P.O. 4. DEEPTHY JAISON, D/O.M.M.JOSEPH, MOOTHODATHU HOUSE, PIZHAKU P.O. 5. GRACY JOSEPH, D/O.M.M.JOSEPH, MOOTHODATHU HOUSE, PIZHAKU P.O. BY ADV. SRI.P.C.HARIDAS RESPONDENTS: ACCUSED -------------------- 1. RAMAN PILLAI, ARICHEZHIYIL HOUSE, NEELOOR P.O. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.KAMAPPU ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.313 of 2008 ------------------------------------- Dated this the 11th day of June, 2008 JUDGMENT The appellants are the legal representatives of the deceased complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.40,000/-. The complaint was filed in the year 2000 and the matter dragged on till 2003. On 03.01.03, the complainant and the accused were present in the court. The matter was posted for evidence or for settlement as a last chance to 22.03.03. On 22.03.03, there was no sitting and the case was adjourned to 28.03.03. On that day, the complainant was absent. His counsel had filed an application, it is submitted. But as the matter was posted for settlement or evidence as a last chance to 22.03.03, the learned Magistrate proceeded to dismiss the complaint and acquitted the accused under Section 256(1) Cr.P.C. 2. The learned counsel for the appellants submits that the complainant was not guilty of any contumacious laches. He was laid up on 28.04.07. That is why he could not appear before the court. Application to that effect was filed. The complainant, who was sick, had later expired. That is why his legal heirs have now Crl.Appeal. No.313 of 2008 2 preferred this appeal. It is prayed that the complainant/his legal heirs may be given an opportunity to substantiate their complaint. 3. The prayer in the appeal is opposed by the counsel for the respondent. But notwithstanding the opposition, I am satisfied, in the facts and circumstances of this case, that the complainant deserves to be granted a reasonable further opportunity to substantiate his case. In coming to this conclusion I need only mention that I have gone through the order sheet maintained by the learned Magistrate and I do not find the complainant guilty of any such contumacious or unpardonable laches. 4. In the result: i) This Criminal appeal is allowed; ii) The impugned judgment of acquittal is set aside; iii) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law. 5. The parties shall appear before the learned Magistrate on 21.07.08 to continue the proceedings without waiting for any further directions. The Registry shall send back records to the court below forthwith such that the records reach the learned Magistrate well prior to 21.07.08. (R.BASANT, JUDGE) rtr/-