IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 CRL.A.No. 1757 of 2007 -------------------------------------- ST.1581/1999 of JFCM-I, THRISSUR ............. APPELLANT/COMPLAINANT: SURESH V.V., S/O.VELAYUDHAN, AGED 25 YEARS,VELLOTH HOUSE, CHEVVOOR VILLAGE, THRISSUR TALUK. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS/ACCUSED: 1. C.P.FRANCIS,S/O.CHEENAN POULOSE, 53 YEARS, CHONAN HOUSE, PALISERY VILLAGE, THRISSRU TALUK. ADDL.R2 IMPLEADED STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. Impleaded as per order dt. 20.2.08 in Crl.M.A.1439/08 BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 1757 of 2007 --------------------------- JUDGMENT This appeal is filed by the complainant in S.T. No.1581/99 on the file of the Judicial First Class Magistrate's Court-I, Thrissur, assailing the acquittal of the first respondent/accused of offence punishable under Section 138 of the Negotiable Instruments Act, vide Section 256(1) Cr.P.C. The impugned order reads as follows: “The case was called on for hearing today to which it had been adjourned. The complainant not being present either in person or by pleader, the accused is acquitted under Section 256 Cr.P.C.” 2. There is no mention in the order as to for what purpose the case stood posted, viz., as to whether the case stood posted for evidence or for any other purpose, to 30.4.2001, the date on which CRA 1757/07 2 the accused was acquitted. Mere absence of the complainant is not a ground for acquitting the accused under Section 256(1) Cr.P.C. and to dispose of the case, unless by such absence the court below was disabled from making any progress in the case. There is no mention at all of any such event having happened in the instant case. The order passed by the court below is in a mechanical manner and is not at all satisfactory. However, it is noticed that the S.T. case is of the year 1999; that it was disposed of on 30.4.2001; that by the lethargic attitude and lack of eagerness on the part of the appellant in prosecuting the case, this appeal is pending here for the last about seven years. Counsel for the appellant prays that an opportunity be granted to the appellant to have his case considered on merits. I am of the view that the request can be granted. 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 appellant CRA 1757/07 3 shall positively appear in the court below on 30.4.2008 and shall continue to appear on all posting dates of the case hereafter without fail till the disposal of the case afresh by the court below. He shall also take necessary steps as ordered by the court below to procure the presence of the first respondent/accused, as the first respondent has not entered appearance before this Court, despite service of notice. Any further laches on the part of the appellant in prosecuting the case in the court below will be at his risk. Appellant shall produce a copy of this judgment in the court below on or before 30.4.2008 to enable the learned Magistrate to abide by the directions in this judgment and to expedite trial of the case. This appeal is, thus, allowed by way of remand. 28th March, 2008 (K.P.Balachandran, Judge) tkv CRA 1757/07 4 K.P.Balachandran, J. --------------------- Crl.A.No.1757 of 2007 --------------------- JUDGMENT 28th March, 2008