IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 Crl.MC.No. 1719 of 2008() ------------------------- AGAINST THE ORDER IN CMP.843/2008 IN ST.1749/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... PETITIONER: ------------ K.HAMZA, S/O. KUNHIPOCKU, KAMBALA HOUSE, KURUMBATHOOR P.O., KALPAKANCHERY, TIRUR TALUK. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS: ------------- 1. T.V.JAYAPRAKASAN, S/O. CHATHAPPA, THATTARUVALAPPIL HOUSE, ATHAVANAD P.O., TIRUR TALUK. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.1719 of 2008 ---------------------------------------- Dated this the 6th day of June 2008 O R D E R Respondent is served. When the matter came up for hearing on 4/6/2008, a counsel had entered appearance and asked for time. The matter was heard in part on 4/6/2008. Today there is no representation for the respondent. No vakalath is seen filed. I am satisfied that the matter can be considered and disposed of on merits. 2. The petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act. According to the petitioner, the case was posted for defence evidence finally to 24/1/2008. On that day, there was no sitting of the court. It was posted to that day for examination of the accused. A petition had earlier been filed under Section 315 Cr.P.C and the same had been allowed. From 24/1/2008, the case was adjourned by notification to 22/4/2008. But though the notification showed so, the order sheet revealed that the case was adjourned to 22/2/2008 (instead of 22/4/2008 as shown in the notification). The matter was pending before the court at Tirur. The learned Crl.M.C.No.1719/08 2 counsel for the petitioner who happened to be present in court allegedly represented that the accused was not present and the case was not posted to that date. Thereupon the learned Magistrate, it is submitted, noted that the accused was absent that there was no defence evidence. The case was posted to the next date to continue the proceedings. 3. According to the petitioner, the petitioner has been denied reasonable opportunity to adduce evidence in support of his case. The petitioner prays that he may be given opportunity to adduce defence evidence. The petitioner further submits that he had filed two applications as C.M.P Nos.842 and 843 of 2008 to reopen the evidence and send the cheque to the expert. Those petitions have also been dismissed by the learned Magistrate without taking note of the fact that the petitioner's absence on 22/2/2008 was not attributable to any contumacious latches on his part. 4. Report of the learned Magistrate was called for. The learned Magistrate in his report accepts that the notification showed the next date of posting as 22/4/2008 though it was actually posted to 22/2/2008. The learned Magistrate further submits that this fact was not brought to his notice by anyone. I do not want to enter into the controversy as to whether the error Crl.M.C.No.1719/08 3 in the posting dates was actually brought to the notice of the learned Magistrate by the counsel who happened to be present in court on 22/2/2008 or not. The fact remains that the accused must have gone away from the court on 24/1/2008 under the impression that the case was posted to 22/4/2008. He should not have been visited with any adverse order on 22/2/2008 in these circumstances. I am in these circumstances satisfied that the interests of justice would be served eminently by directing the learned Magistrate to continue the proceedings from the position where it stood on 24/1/2008. The petitioner shall be permitted to adduce defence evidence. C.M.P.No.842/2003 for re-opening the evidence becomes unnecessary in the light of the above directions. Crl.M.P.No.843/2008 to send the cheque to the expert shall be considered by the learned Magistrate and appropriate order shall be passed afresh after the evidence of the petitioner is adduced as a defence evidence. 5. This Crl.M.C is accordingly allowed to the above extent. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.1719/08 4 Crl.M.C.No.1719/08 5 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007