IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.A.No. 1906 of 2006() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.413/2006 Dated 10/08/2006 CC.1049/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- SIVASANKARA PILLAI, S/O.JANARDHANAN PILLAI, POOJA BHAVAN, INCHAKKADU, MYLOM P.O., KOTTARAKKARA, KOLLAM. BY ADV. SRI.C.R.JAYAKUMAR RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASANNA, W/O.SOMAN PILLAI, KIZHAKKETHIL PUTHEN VEEDU, MYLAKKADU P.O., KOLLAM. ADV. SRI.AJAYA KUMAR. G FOR R2 R1 BY PUBLIC PROSECUTOR SMT. K.L. LAKSHMI RANI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl. Appeal No.1906 OF 2006 ------------------------------- Dated this the 22nd September, 2008. JUDGMENT This appeal is preferred by the complainant, in C.C.1049/2003 on the file of the Judicial First Class Magistrate Court, Kollam, challenging the order of acquittal passed by the court by its order dated 3.1.2006 under Section 256(1) Cr.P.C. 2. The above case was instituted for the offence under Section 138 of the Negotiable Instruments Act on the allegation that the cheque in question for an amount of Rs.2 lakhs was dishonoured and thereby committed the offence. In this appeal it is stated that the complainant was absent on 3.1.2006 due to mistake in noting down the date of posting by the clerk of the counsel for the complainant. According to the counsel the clerk of the counsel for the complainant noted down the date as 13.1.2006 instead of 3.1.2006. It was on the basis of such mistake crept in taking down the date the complainant was absent when the case was called on 3.1.2006. Thus, according to the counsel for the appellant there was no wilful negligence on the part of the complainant in Crl. Appeal No: 1906/2006 2 appearing and hence the order of the court below is unsustainable and liable to be set aside. 3. I have heard the counsel for the appellant as well as the counsel for the respondent. On a perusal of the impugned judgment it can be seen that the case was posted for evidence on 5.3.2005. On that day the complainant was absent but represented by his counsel. Thereafter the case was posted for evidence on 26.10.2005. On that day also the complainant was absent and represented by his counsel. Again, thereafter it was adjourned for the evidence but with a specific order that no further time will be granted and posted on 3.1.2006. On 3.1.2006 also the complainant as well as his counsel were absent. In the impugned order the court has specifically noted that the complainant had never appeared before the court after taking the case on file. So, on the date on which the impugned order was passed, neither the complainant nor his counsel was present and no application was filed for the adjournment of the case. It is also mentioned by the court below that the case is an oldest one on the file of the court and further adjournment of the case will be resulted delay in disposing the case. It is under the above circumstances, the court passed an order Crl. Appeal No: 1906/2006 3 under Section 256(1) Cr.P.C acquitting the accused. Having regard to the facts and circumstances involved in the case and the detailed reasoning given by the court below, I am of the opinion that no interference of this Court is called for and this appeal is liable to be dismissed. In the result there is no merit in the appeal and the same is dismissed accordingly. V.K.MOHANAN JUDGE jj