IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 CRL.A.No. 1467 of 2004 --------------------------------------- CC.553/1999 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... APPELLANT/COMPLAINANT: GOPIDAKSHAN S/O. MOOTHORAN, MANNARI, PALAZHI DESOM, GURUVAYURAPPAN COLLEGE P.O KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS/ACCUSED: 1. VELAYUDHAN, S/O. AYYAPPAN, CHELPRA HOUSE, IRRINGALLORE AMSOM, PALAZHI DESOM, P.O.GURUVAYURAPPAN COLLEGE, KOZHIKODE 14. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.T.J.AMBOOKEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1467 of 2004 --------------------------- JUDGMENT The first respondent, though served, has not entered appearance. Heard the counsel for the appellant. 2. It was on account of the absence of the complainant on the day on which the case stood posted for evidence and the court could not, therefore, make any progress in the case that an application filed by the appellant/complainant for exemption was rejected and the accused was acquitted. However, the court below has not stated any reason whatsoever as to why the application for exemption was rejected and as to whether the reasons stated in the application were genuine or flimsy. Without considering the ground for adjournment, it was not proper to straightaway refuse an application filed for exemption on behalf of the complainant and to acquit the accused. CRA 1467/04 2 3. In the result, I set aside the order impugned and remit the case back to the file of the Judicial First Class Magistrate-V, Kozhikode. The learned Magistrate shall issue summons/warrant afresh to the accused and procure his presence and afford an opportunity to the appellant to substantiate his case on merits. The appellant shall be vigilant in prosecuting his case and in case of failure, he cannot complain hereafter that no opportunity was afforded to him. The case shall stand posted in the court below to 26.3.2008. The appellant shall positively appear in the court below on 26.3.2008 and shall also take steps as ordered by the learned Magistrate for summons/ warrant being issued to the accused. This appeal is, thus, allowed by way of remand. 26th February, 2008 (K.P.Balachandran, Judge) tkv