IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 CRL.A.No. 706 of 2008 ------------------------------------ CC.164/2003 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE .................... APPELLANT/COMPLAINANT: SUJOY V.NAIR, PROPRIETOR, KAILAS ENTERPRISES, 10/1099, P.V.SWAMY ROAD, CHALAPPURAM, KOZHIKODE. BY ADV. SRI.K.D.BABU RESPONDENTS/ACCUSED AND STATE: 1. HUSSAIN KUTTY, N.C.TRADE LTD., RAHIMAN BAZAR, KOLATHARA P.O. KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 706 of 2008 --------------------------- JUDGMENT This appeal is one filed by the complainant in C.C.No.164/03 on the file of the Judicial First Class Magistrate's Court-III, Kozhikode, assailing the acquittal of the first respondent of offence punishable under Section 138 of the Negotiable Instruments Act vide Section 256(1) Cr.P.C. 2. It is seen from the impugned order that the case stood posted to 10.11.2003 for questioning the accused under Section 313 Cr.P.C. For the reason that both the appellant/complainant and the accused were absent, the case was adjourned to next day, namely, on 11.11.2003. On that day also, both the appellant and the first respondent were absent and it was then that the court below passed the impugned order, acquitting the accused under Section 256(1) Cr.P.C. In the preface of the order, the date of disposal is shown as 10.11.2003 and disposal of the date just above the signature of CRA 706/08 2 the learned Magistrate is shown as 11.11.2003. I do not intend to probe into such minor mistakes, but, all the same, it is worthy to note that if at all at the stage of 313 questioning the first respondent/accused did not appear, the proper course was to order warrant against him for which the duty cast on the appellant/complainant was only to take steps and his presence was not required for the progress of the case. Acquittal of the first respondent by the court below is, hence, unwarranted and illegal. 2. In the result, I set aside the impugned order and remit the case back to the court below for disposal afresh according to law. The case shall stand posted in the court below to 8.5.2008. Appellant shall appear in the court below positively on 8.5.2008 and shall continue to appear on all future posting dates of the case without fail till the disposal of the case by the court below. He shall also take necessary steps as CRA 706/08 3 ordered by the learned Magistrate to procure the presence of the first respondent in the court below. The appellant is directed to produce a copy of this judgment in the court below positively on or before 8.5.2008, so that the learned Magistrate can take speedy steps to have the case disposed of, abiding by the directions given in this judgment at the earliest. The learned Magistrate shall expedite the disposal of the case and in any event within two months from 8.5.2008. The appeal is, thus, disposed of by way of remand. 9th April, 2008 (K.P.Balachandran, Judge) tkv