IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 CRL.A.No.164 of 2008 (A) ------------------------------ AGAINST THE ORDER IN CRL.L.P.10/2008. CC.390/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY. .................... APPELLANT: COMPLAINANT -------------------------------- SMT.ANNIE ELIAS, W/O.ELIAS, PADAYATTIL HOUSE, KORATTY KIZHAKKUM MURI VILLAGE, KORATTY SOUTH P.O., CHIRANGARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DT. BY ADV. SRI.P.M.POULOSE RESPONDENTS: RESPONDENT AND STATE ------------------------------------------------- 1. VARGHESE MATHEW, S/O.MATHEW, MENACHERI HOUSE, EAST KORATTY P.O., KORATTY KIZHAKKUM MURI VILLAGE, CHIRANGARA DESOM, MUKUNDAPURAM TALUK, THRISSUR DT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.H.HANIL KUMAR PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.164 of 2008 ------------------------------------------------ Dated this the 11th day of March, 2008 JUDGMENT This is appeal filed with leave by the complainant in C.C.390/06 on the file of the Judicial First Class Magistrate's Court, Chalakudy assailing the acquittal of the first respondent of offence punishable under Section 138 of the N.I. Act under Section 256(1) Cr.P.C for reason of absence of the complainant. The first respondent has also entered appearance through lawyer. 2. Heard counsel on both sides and the Public Prosecutor. It is seen from the order sheet maintained by the court below that the accused entered appearance in person only on 13/07/07 though he entered appearance through lawyer on 13/10/06. On 13/07/07, the first respondent was granted bail and he was questioned by the Magistrate reading over the Crl. Appeal No.164 of 2008 -2- particulars of the offence and explaining it to him. Thereupon, he pleaded not guilty and the case was posted for evidence to 25/08/07. On 25/08/07 and on 29/09/07 to which day the case stood adjourned as a last chance for evidence, the appellant/complainant was present and the accused was absent on both those days and he was applying for adjournment. The case was adjourned from 29/09/07 to 02/11/07 on which day the complainant was absent and application filed on his behalf was rejected without assigning any reason whatsoever and the first respondent was acquitted. 3. It is worthy to note that the appellant was present before the Magistrate on 29/09/07 when the case stood posted for evidence as a last chance. Even in case the accused applied for exemption the learned Magistrate could have examined the appellant. Instead the case was being adjourned to Crl. Appeal No.164 of 2008 -3- 02/11/07 on which day the first respondent was being acquitted rejecting the application of the appellant for adjournment without any speaking order passed while rejecting the said application. It is true that the learned Magistrate in view of the posting of the case as a last chance for evidence was unable to make any progress in the case. But however, he should have considered the ground in the application and rejected the application by a speaking order and then disposed of the case. In the instant case, the order sheet or the order does not show that there was sufficient reasons for the learned Magistrate to reject the application and to dispose of the matter acquitting the first respondent. In the circumstances, I am of the view that one opportunity has to be afforded to the appellant to establish his case on merits. Crl. Appeal No.164 of 2008 -4- 4. In the result, in reversal of the order of acquittal passed by the court below, I allow this appeal and remit the case back to the court below and direct the parties to appear before the Magistrate in the court below positively on 24/03/08. No notice or summons need be issued to any of the parties as counsel on both sides have taken note of the posting on 24/03/08. It is made clear that if there is any further laches on the part of the appellant in prosecuting his case promptly, the learned Magistrate shall be at liberty to dispose of the complaint according to law. This appeal is thus allowed by way of remand for disposal of the case afresh according to law. K.P.BALACHANDRAN, JUDGE kns/-