IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 CRL.A.No. 2595 of 2009() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1074/2009 Dated 04/12/2009 ST.2628/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM ........................................................................................... APPELLANT(S): PETITIONER/COMPLAINANT ---------------------------------------------------------------- P.C.RAMADASAN, (PARTNER, POINT ALUMINIUM FABRICATORS, EAST OTTAPALAM, OTTAPALAM) S/O.CHAMMI CHETTIAR, RESHMA NIVAS, TRIKKANGODE, MANISSERY, OTTAPALAM TALUK. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): STATE & ACCUSED ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JAFFAR K.K., S/O.HASSAN, KALLUVETTUKUZHIYIL HOUSE, NEAR LSN CONVENT, OTTAPALAM. BY ADV.SRI.AMJAD ALI, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.2595 of 2009 ------------------------------- Dated this the 5th day of March, 2010. J U D G M E N T This appeal is at the instance of the complainant, in a prosecution for the offence punishable u/s.138 of the Negotiable Instruments Act, as he is aggrieved by the order of acquittal passed by the court below u/s.256(1) of Cr.P.C. 2. The cheques in question covered an amount of Rs.20,000/- and the complainant/appellant is an Aluminum Fabricator. It is submitted by the learned counsel that, the complainant was earnestly prosecuting the complaint and there was no willful latches or negligence on his part in appearing before the court below on 9.11.2009 and the court below issued the impugned order inspite of the petition filed by the complainant to excuse his absence. 3. From the cause title, it appears that the case is pertained to the year 2008 and the complainant was present on 4.11.2009 but the accused was absent on that day. It is true that, the complainant was directed to appear on 4.11.2009 and to Crl. APPEAL No.2595 of 2009 2 adduce evidence on 9.11.2009 but according to the learned Magistrate, he did not turn up on 9.11.2009, inspite of the direction issued on 4.11.2009. Nothing discernible from the impugned order as to whether the complainant had represented on the date of the impugned order or any application was filed to condone his absence. The learned counsel made available to me the certified copy of the order dated 9.11.2009 in Crl.M.P.No.4519/09 in S.T.C.No.2628/08 of JFCM Court-I, Ottappalam. The learned counsel also made available to me a copy of the petition mentioned in the above order and on perusal of the said petition, it can be seen that he was unable to attend the court on 9.11.2009, as he had to attend an interview which was scheduled on 10.11.2009 and 11.11.2009, for selection to the post of Aluminum Fabricator in a company in Dubai. The above ground is not referred to, by the learned Magistrate, in the order dated 9.11.2009 which was issued in Crl.M.P.No.4519/09. So it is clear that, the observation made by the court below in the said order is absolutely incorrect. It is also relevant to note that whatever be the reason stated in the order of the learned Magistrate in the above criminal miscellaneous petition, the Crl. APPEAL No.2595 of 2009 3 same will not find a place in the impugned order. The non- mentioning of the order dated 9.11.2009 in Crl.M.P.No.4519/09 in S.T.C.No.2628/08, itself is a ground to set aside the impugned order. 4. It is beyond dispute that the complainant was present on 4.11.2009 and he was absent on 9.11.2009, though there was a direction to be present on that day. But the complainant was re-presented on the date of the impugned order and requested the court to condone the delay by filing a proper petition but the same was rejected without assigning proper reasoning and such production has no bearing in the impugned order. Under the above circumstances, I cannot sustain the order passed by the Trial Court on 9.11.2009, acquitting the accused u/s.256(1) of Cr.P.C. In the result, the impugned order dated 9.11.2009 in S.T.C.No.2628/08 of the JFCM Court-I, Ottappalam, is set aside. The appellant/complainant is directed to appear before the Trial Court on 5.4.2010 on which date, the learned Magistrate is directed to restore the case on file and to proceed with the same in accordance with law and procedure and Crl. APPEAL No.2595 of 2009 4 dispose of the same on merit. V.K.MOHANAN, Judge. ami/