Criminal Appeal No. 59 of 2008 · Kerala High Court

THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 59 of 2008 --------------------------- JUDGMENT This appeal is filed by the complainant in S.T. No.1296/98 on the file of the Chief Judicial Magistrate's Court, Thrissur, assailing the acquittal of respondents 1 to 3 of offence under Section 138 of the Negotiable Instruments Act, vide Section 256(1) Cr.P.C. The order impugned 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 are acquitted under Section 256 (1) Cr.P.C.”

2. From the order extracted above, it is not clear as to whether absence of the complainant on

13.11.2000, the day on which respondents 1 to 3 were acquitted, disabled the court below from CRA 59/08 2 making any progress in the case. It is not seen specified as to for what purpose the case stood posted on that particular day. Unless absence of the complainant disabled the court below from making any progress in the case, it is not proper to acquit the accused with no application of judicial mind as to whether adjournment has to be granted or the case has to be disposed of acquitting the accused consequent on absence of the appellant/complainant. Dismissal by the court below of the case in the above fashion is not at all satisfactory.

2. It is noticed that the case is of the year 1998 and it was being disposed of by the court below only as late as on 13.11.2000. Before this Court also, this appeal happened to be held up on account of the laches of the appellant only, as in the leave petition and in the delay petition filed therewith, service was not completed within a reasonable time. CRA 59/08 3

3. Counsel for the appellant submits that at least one more opportunity be granted to the appellant to have her case considered on merits. Considering the circumstances of the case, I am of the view that the request deserves to be granted.

4. In the result, I set aside the impugned order passed by the Chief Judicial Magistrate, acquitting respondents 1 to 3 of offence under Section 138 of the Negotiable Instruments Act vide Section 256(1) Cr.P.C. and remit the case back to the Court of the Chief Judicial Magistrate, Thrissur, posting the case to 23.4.2008. Appellant shall invariably appear in the court below on

23.4.2008 and shall continue to appear in the court below on all posting dates of the case hereafter till the disposal of the case afresh by the court below. Appellant shall also take steps for issuance of summons or warrant, as the case may be, in obedience to the order of the Chief Judicial Magistrate, as posting of the case before the Chief CRA 59/08 4 Judicial Magistrate's Court on 23.4.2008 is without notice to respondents 1 to 3, who are the accused in the case, as they have not appeared before this Court. Any further laches on the part of the appellant in prosecuting the case in the court below shall be at her risk. Registry shall send the lower court records forthwith to the court below, so as to enable the court below to take up the case on 23.4.2008 itself. The appeal is, thus, disposed of by way of remand. 25th March, 2008 (K.P.Balachandran, Judge)