IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 CRL.A.No. 1316 of 2008() {S.T.NO.2646/2004 OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-II, PARAPPANANGADI} .................... APPELLANT: -------------------- DR.P.K.RAGHAVAN, S/O.C.K.KRISHNAN RAYIRIMANGALAM AMSOM DESOM, TANUR, MALAPPURAM BY ADV. SRI.BIJI MATHEW RESPONDENTS: ------------------------- 1. USHA NATARAJAN, KUTTUNGAL HOUSE MICHALES LODGE, NETHAJI ROAD, PALARIVATTOM, ERNAKULAM 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM R1 BY ADV. SRI.K.K.MOHAMED RAVUF R2 BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.A.No.1316 of 2008 D ------------------------- Dated this the 20th day of August, 2008. JUDGMENT The complainant, in S.T.No.2646/04 on the file of the Judicial Magistrate of the First Class- II, Parappanangadi, is the appellant in this appeal. This appeal is filed against the order of acquittal of the accused under Section 256(1) of the Code of Criminal Procedure. The complaint was filed against the accused alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 {for short 'the Act'}. 2. The allegation is that the accused borrowed a sum of Rs.1,50,000/- from the complainant and issued a cheque for the said sum. The cheque was dishonoured for insufficiency of funds. Hence, the complaint was lodged. 3. A perusal of the order sheet in the case shows that apparently from 25.9.2006, the complainant was present in court on all other occasions, except on 6.2.2007. The complainant had examined the Branch Manager as PW.1 on 8.3.2007 and Ext.P1 was also marked on his side. The case was posted to 10.4.2007, 28.4.2007 and finally on CRL.A.No.1316 of 2008 :: 2 :: 15.5.2007. On 15.5.2007, taking note of the fact that the complainant was absent and the case was posted for the purpose of trial, the court below invoked its power under Section 256(1) of the Code of Criminal Procedure and acquitted the accused. 4. Learned counsel for the appellant refers to Annexure A2 application, which was submitted before the court, stated to have been filed on behalf of the complainant on 15.5.2007 seeking exemption from personal appearance of the complainant on that day. The only reason stated in the application seems to be that the complainant has an emergent reason for visiting his wife's house. Needless to say that it is not a good reason for the absence of the complainant. The reason given by the complainant seems to be an attempt to insult the sensibilities of a judicial forum. The most generous view that can be taken is that the application might have been drafted by A person who has no training in the conduct of matters before a court of law. 5. I am not in a position to find that the order of acquittal passed by the court below is wrong or otherwise unjustified. There has been CRL.A.No.1316 of 2008 :: 3 :: recalcitrant willful default on the part of the complainant. I would have normally agreed with the submission made by Mr.Ravuf, learned counsel for the accused, that the complainant, in the circumstances, does not deserve any indulgence. But, taking note of the fact that the complaint should, as far as possible, be tried on merits, I am inclined to give another opportunity to the complainant. But, this will be only on terms. I take note of the fact that the accused is required to travel from Ernakulam to Parappanangadi. Of course, the presence of the accused should be required only if it is absolutely necessary. 6. For all these reasons, the appeal is allowed. The order of acquittal is set aside on condition that the appellant/complainant pays an amount of Rs.12,500/- as costs, either to the counsel for the 1st respondent or deposits in the court below within a period of one month from today. It is made clear that if the accused does not deposit the amount, the order of acquittal shall stand confirmed and the appeal shall stand dismissed. If the accused pays/deposits the said amount, the complaint will stand restored to file. CRL.A.No.1316 of 2008 :: 4 :: The complainant shall, thereafter, appear before the court below on 6.10.2008 and it is made clear that the court below shall insist on his appearance on all posting dates, till the final judgment is pronounced after trial. The records shall be transmitted to the court below without further delay, if it is received. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge