IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 CRL.A.No. 1257 of 2009() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.471/2009 Dated 30/06/2009 ST.506/2008 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM ........................................................................... APPELLANT(S): PETITIONER/COMPLAINANT ----------------------------------------------------------------- SABU VARGHESE, S/O. PAPPACHAN, PADANAYARKULANGARA SOUTH MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY. BY ADVS. SRI. K.SIJU SRI.A.MUHAMMED RAFFI RESPONDENT(S): ACCUSED & STATE ------------------------------------------------------ 1. T.K.GEORGE VAIDYAN, S/O. KOCHUKOSHY VAIDYAN, THENGUMVILAYIL HOUSE, KIZHAKKEKARA MURI, MYNAGAPPALLY VILLAGE, THEVALAKARA P.O., KUNNATHOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS. SRI.JOHNSON GOMEZ FOR R1 SRI.C.S.HRITHIK, PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. APPEAL No.1257 of 2009 ------------------------------- Dated this the 16th day of March, 2010. J U D G M E N T This is an appeal preferred against an order of acquittal passed by the Trial Court u/s.256(1) of Cr.P.C. in S.T.506/08, which is a case instituted upon a complaint, filed by the appellant for the offence punishable u/s.138 of Negotiable Instruments Act. 2. This court by an order dated 30.6.2009 in Crl.L.P.No.471/09 granted leave to file the appeal, after hearing both the counsels for the petitioner and the respondents therein. Thus this appeal filed. 3. I have heard the counsels for the appellant as well as the contesting respondent. 4. The learned counsel for the appellant submitted that the case was posted for the appearance of the accused on 8.5.2009, as a last chance for his appearance before the Court below and according to learned counsel the presence of the Crl. APPEAL No.1257 of 2009 2 complainant was not inevitable. 5. Along with the criminal appeal memorandum, the appellant has produced the ordersheet of the court below in the above case from which it can be seen that the cognizance was taken on 6.5.2008 and thereafter the case was being adjourned for the appearance of the accused. On a perusal of the order sheet, especially from the endorsement that contained from 14.8.2008 onwards it is clear that on all occasions, the complainant was present and finally on 3.3.2009, the complainant was absent but the application to condone his absence was allowed and the case was adjourned to 8.5.2009 for the appearance of the accused as a last chance, as he was also not present on 3.3.2009. Thus on 8.5.2009, the complainant as well as the accused were absent. From the impugned order it appears that, no application was filed for and on behalf of the complainant and the complainant was not represented through the counsel at the time when the case was called. The learned counsel for the appellant submitted that, the case was called just before the arrival of the counsel before the Trial Court and there Crl. APPEAL No.1257 of 2009 3 was no latches either on the part of the complainant or his counsel in appearing before the court below in time. 6. It appears that the cheque in question cover for an amount of Rs.18 lakhs. The complaint was received on file and cognizance was taken only on 6.5.2008 and thereafter the case was being adjourned for the appearance of the accused. From the facts referred above, it can be seen that on 8.5.2009, the date of the impugned order, the presence of the complainant was not a must especially when the case was posted for the appearance of the accused as a last chance. Under the above circumstances, the court below ought not have passed such an order acquitting the accused u/s.256(1) of Cr.P.C., especially in the light of the decisions reported in 2003(1) KLT 339 [Alice George Vs. Deputy Superintendent of Police] and in 2005(2) KLT 1003 [Don Bosco Vs. Partech Computers Ltd.] and also the decision of Honourable Apex Court reported in 2002(7) SCC 726 [Mohd. Azeen Vs. A.Venkatesh]. Thus according to me, the impugned order is liable to be set aside. However, from the proceedings of the court below and from the impugned order it Crl. APPEAL No.1257 of 2009 4 appears that the complainant was neither present nor represented and the explanation offered are not so convincing. Under the above circumstances, I am of the view that this appeal can be allowed but subject to terms. In the result, this appeal is allowed setting aside the order dated 8.5.2009 in S.T.506/08 of the Court of Chief Judicial Magistrate, Kollam, on condition that the appellant depositing a sum of Rs.1,000/- in the court below on 30.3.2010, on which date the court below is directed, to restore the complaint on file on the satisfaction that the appellant/complainant had deposited the amount as directed, above and to proceed with the complaint in accordance with law and dispose the same on merit after securing the presence of the accused. On payment of the amount as directed above, the court below is directed to deposit the same to the State Exchequer. Criminal appeal is allowed accordingly. V.K.MOHANAN, Judge. ami/