IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 CRL.A.No.245 of 2008 (A) ------------------------------ AGAINST THE ORDER IN CRL.L.P.485/2007 Dated 29/10/2007 ST.8/2004 OF JUDICIAL FIRST CLASS MAGISTRATE-IV, KOCHI. .................... APPELLANT: COMPLAINANT -------------------------------- M.M.MOHAMMED ASHRAF, S.B.ACCOUNT HOLDER NO.309, S.B.T. KALAMASSERY, RESIDING AT MANIYATTUKUDI HOUSE, NEAR MUNICIPAL OFFICE, CHANGAMPUZHA NAGAR P.O., SOUTH KALAMASSERY, KOCHI - 33. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENTS: ACCUSED AND STATE -------------------------------------------- 1. N.D.JOSEPH, F.A.C.T. QUARTERS, FLAT NO.C.F.NO.46, ELOOR P.O., ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. BY ADV. SRI.V.E.ABDUL GAFOOR SRI.A.MOHAMMED SAVAD PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.245 of 2008 ------------------------------------------------ Dated this the 28th day of March, 2008 JUDGMENT The complainant in S.T.8/04 on the file of the Judicial First Class Magistrate's Court-IV, Kochi is the appellant. He assails in this appeal the acquittal of the first respondent of offence under Section 138 of the N.I. Act vide Section 256(1) of the Cr.P.C. 2. On a reading of the judgment of the court below, it is noticed that the appellant was not at all vigilant in having the case prosecuted and he has brought about a situation which has disabled the court from making any further progress in the case for reason of his absence. I do not find any reason to find fault with the Magistrate in having disposed of the case in the circumstances. However, the counsel for the appellant prays for one more opportunity for Crl. Appeal No.245 of 2008 -2- the appellant to establish his case on merits. I am of the view that one more opportunity can be granted to the appellant to establish his case if at all he is desirous of having his case prosecuted further without any further laches. 3. In the result, allowing this appeal I set aside the judgment under appeal acquitting the first respondent of offence under Section 138 of the N.I. Act and remit the case back to the court below for disposal afresh according to law. The appellant shall appear in the court below positively on 30/04/08 and shall produce a copy of this judgment before the learned Magistrate on or before 30/04/08 to enable the Magistrate to abide by the directions in this judgment and to have the case disposed of afresh at the earliest. The appellant, on his appearance in the court below on 30/04/08, shall take all necessary Crl. Appeal No.245 of 2008 -3- steps as ordered by the learned Magistrate, without fail, to procure the presence of the first respondent in the court below if at all he does not appear pursuant to the remand. It is made clear that the appellant shall appear in the court below on all posting dates of the case hereafter without fail and any further laches on his part in the proper conduct of the case shall be at his own risk. The learned Magistrate shall expedite the trial of the case considering the fact that the case is one of the year 2004. 4. This appeal is thus allowed by way of remand. K.P.BALACHANDRAN, JUDGE kns/-