Judgment · High Court · 2009

M.C.HARI RANI, J. ----------------------------------------------------- CRL.A.No.526 OF 2002----------------------------------------------------- DATED THIS THE 3RD DAY OF JUNE, 2009J U D G M E N T This criminal appeal is preferred by the complainant inC.C.No.1096/2000 on the file of the Judicial First ClassMagistrate's Court-III, Thrissur. The offence alleged against thefirst respondent herein was under Section 138 of the NegotiableInstruments Act. As per order dated 29.4.2002, the learnedMagistrate acquitted the accused under Section 256 of Cr.P.C.which is challenged in this appeal.

Heard the learned counsel for the appellant and thelearned counsel for the first respondent.

It is submitted by the learned counsel for the appellantthat the order dated 29.4.2002 is illegal, improper and contraryto real facts. According to the learned counsel, though summonswas served to the accused before 22.5.2001, he did not appeartill 29.4.2002. Without considering the absence of the accused inspite of receipt of summons issued to him, he was acquitted bythe lower court which is to be set aside, it is submitted. CRL.A.No.526/02 -2-4.The learned counsel for the first respondent has opposed theprayer in this appeal and submitted that no medical certificate has beenproduced by the complainant along with the petition filed on 29.4.2002 toexcuse his absence and there is no illegality in the order which is to besustained.

I have perused the records of this case. It would reveal thatthe complaint filed by the complainant under section 190 Cr.P.C. and 138of N.I.Act has been taken cognizance by the learned Chief JudicialMagistrate and on 2.9.2000, the case was made over to the Court of Judicial First Class Magistrate-III. It was taken on file asC.C.No.1096/2000 and ordered to issue summons to the accused, whereby the accused was directed to appear before the concerned courton 7.12.2000. On 7.12.2000, the complainant was absent and againdirected to issue summons to the accused by registered post and thecase was posted to 22.5.2001. In compliance of that order, thecomplainant paid batta and summons was served to the accused asrevealed from the acknowledgement card. On 22.5.2001, thecomplainant and the accused were absent and both have filed applicationthrough their counsel for excusing their absence, and the same CRL.A.No.526/02 -3-were allowed by the learned Magistrate and adjourned the case to21.11.2001. On that day also both parties were absent and theapplications filed by them through their counsel were allowed andposted the case as last chance on 29.4.2002. The proceedings paperwould reveal that on 29.4.2002, the following order has been passed. “Both parties absent. Absent petition continuously filedbefore this court. Parties not interested in the case. Hence petition dismissed. Accused acquitted U/s.256Cr.P.C.”

It is thus revealed from the proceedings paper that till29.4.2002, the accused did not appear before the concerned court inspite of receipt of summons by him and filed petitions after petitionsthrough his counsel for excusing his absence. The presence of thecomplainant cannot be insisted and his personal presence was notnecessary when the case was posted for the appearance of theaccused. Necessary steps to issue summons to the accused has beentaken by the complainant which would show that the complainant wasinterested to proceed with the case. The reason stated by the learnedMagistrate that parties not interested in the case is a vague one. It CRL.A.No.526/02 -4-goes without saying that none of the accused in a 138 matter will beinterested in proceeding with the case filed by the complainant. Thecomplainant was interested in prosecuting the case and filed applicationto excuse his absence through his counsel. The records also wouldreveal that no speaking order has been passed by the learnedMagistrate in the application Crl.M.P.No.2491/02, filed by thecomplainant before that court on 29.4.2002. Thus, it is evident that thelearned Magistrate has not applied his mind and dismissed the abovecase, C.C.No.1096/2000 by signing printed copy of the order, whereinthe wordings printed are different one from the wordings written in theproceedings paper. In the above circumstances, to meet the ends ofjustice, I find that the impugned order is liable to be set aside and achance should be given to both parties to appear before the lowercourt.