IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 CRL.A.No.1036 of 2001 (D) -------------------------------- CC.438/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR. .................... APPELLANT/COMPLAINANT: --------------------------------- LEEMA ENTERPRISES, OLAVARA, REP. BY ITS GENERAL MANAGER, MUHAMMED FAIZAL, P.A.P., AGED 31 YEARS, S/O A. SULAIMAN HAJI, OLAVARA, P.O. UDUMBUMTHALA, SOUTH TRIKARIPUR, KASARAGOD DISTRICT. BY ADV. SRI.M.V.AMARESAN SRI.V.N.RAMESAN NAMBISAN RESPONDENTS/ACCUSED: ------------------------------ 1. HARIKUMAR R., PROPRIETOR, VETTIKKATTU AGENCIES, KUTTEMPERUR P.O., MANNAR, ALAPPUZHA DISTRICT PIN - 689623. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1036 of 2001 ------------------------------------------------ Dated this the 12th day of March, 2008 JUDGMENT Service to first respondent is effected by paper publication and he has not entered appearance. Public Prosecutor appears for the second respondent. Service is complete. Counsel for the appellant is ready. Heard. 2. This appeal is filed with leave by the complainant in C.C.438/98 on the file of the Judicial First Class Magistrate's Court, Payyannur assailing the order passed by the Magistrate acquitting the first respondent of offence punishable under Section 138 of the N.I. Act vide Section 256(1) Cr.P.C. The impugned order speaks as follows:- “Both applied. Today case is posted for evidence as No Further Time. The reason for absence of the complainant is that he is not well. No Medical Certificate is produced. The application is rejected. The complaint is dismissed for default. Accused acquitted u/s 256 Cr.P.C.” Crl. Appeal No.1036 of 2001 -2- 3. The learned Magistrate has proceeded to dispose of the case acquitting the accused under Section 256(1) Cr.P.C dismissing the application of the appellant/complainant for the reason that no Medical Certificate is produced. No doubt the case stood posted for recording evidence and the absence of the appellant was certainly to disable the court below from making any progress in the case. So technically speaking, the procedure adopted by the learned Magistrate cannot be faulted. 4. Counsel for the appellant submits that at least one opportunity be afforded to the appellant to have his case considered on merits. 5. In the result, allowing this appeal, I remand the case back to the court below for disposal afresh according to law giving an opportunity to the appellant to have his case considered on merits if at all he is really Crl. Appeal No.1036 of 2001 -3- anxious to have his case considered on merits. The appellant shall appear in the court below positively on 28/03/08 and shall continue to appear on all posting dates of the case till the case is disposed of by the court below. Further, as the first respondent/accused has not appeared before this Court, the appellant will have to take promptly all steps as directed by the court below, whether it be summons or warrant as the case be, as against the first respondent/accused to procure his presence. Any further laches on the part of the appellant to have his case prosecuted in the court below promptly and properly will entail a disposal of the case otherwise than on merits and a remand on this occasion will not preclude the learned Magistrate from passing an order of acquittal again under Section 256(1) Cr.P.C if the appellant does not show genuine interest in prosecuting this Crl. Appeal No.1036 of 2001 -4- case of 1998 with due diligence. The appellant shall be at liberty to produce a copy of this judgment before the trial court to enable the court below to comply with the directions in the judgment promptly. K.P.BALACHANDRAN, JUDGE kns/-