IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 255 of 2008()
1. ANTONY K.GEORGE,
... Petitioner
Vs
1. A.B.SADASIVAN,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.SATHISH NINAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :01/04/2008
O R D E R
K.P.BALACHANDRAN,J.
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CRL.APPEAL NO.255 OF 2008
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Dated this the 1st day of April 2008
JUDGMENT
The complainant in C.C.704/1999 on the file of the Judicial
First Class Magistrate’s Court, Thiruvalla is the appellant. He
assails in this appeal the acquittal of the first respondent of
offence under Section 138 of the Negotiable Instruments Act vide
Section 256(1) of the Criminal Procedure Code. The impugned
order passed by the court below is extracted below for easy
reference.
“The case was called on for hearing today to which
it had been posted/adjourned.
The complainant not being present either in
person or by pleader, the accused is acquitted
under Section 256(1) Criminal Procedure Code”.
2. The reason for acquittal of the first respondent/accused
under Section 256(1) of the Criminal Procedure Code stated by
the Magistrate is that the appellant/complainant is not present
either in person or by pleader. The lower court records received
show that an application had been filed by the counsel for the
appellant for exemption from appearance for the appellant along
Crl.A.255/2008 2
with an application for condonation of his absence on 13.12.2002
and the learned Magistrate has passed an order thereon rejecting
it on 13.12.2002. This means that the impugned order has been
passed by the learned Magistrate on 13.12.2002 without applying
his mind at all and even forgetting the fact that an application
filed by the lawyer has been rejected by him. It is also not clear
from the order as to whether the case stood posted for evidence
and whether the absence of the appellant disabled the Magistrate
from making any progress in the case. If at all, the presence of
the appellant in the court below was not necessary on that
particular day to enable the Magistrate to achieve any progress
in the case, it was not proper for the learned Magistrate to have
disposed of the case acquitting the first respondent. It is also
seen that the impugned order is passed in a printed format
without the learned Magistrate applying his mind to the facts and
circumstances of the case.
3. All the same, it is also noticed that the case is of the year
1999 and the learned Magistrate was disposing it of only on
13.12.2002. This means that the appellant was not at all keen in
having his case prosecuted promptly. Further, though Criminal
Crl.A.255/2008 3
Leave Petition was filed before this Court on 5.8.2003, till today
on account of the laches of the appellant, the appeal could not be
disposed of. In the circumstances the case has to be sent back
to the court below with strict direction to the appellant to see
that he does not show such lethargic attitude hereafter in the
conduct of his case.
4. In the result, I set aside the impugned order and remit
the case back to the court below for disposal afresh, according to
law. The appellant shall appear in the court below positively on
30.4.2008 and shall hereafter continue to appear on all posting
dates of the case in the court below without fail. He shall also
comply with all directions of the Magistrate in the matter of
procuring the presence of the first respondent/accused either by
issuing summons or warrant, as the case may be, as ordered by
the Magistrate as the first respondent has not entered
appearance before this Court though served. Any further laches
on the part of the appellant in the conduct of the case in the
court below shall be at his own risk.
The Registry shall send back the LCR to the court below
forthwith so as to enable the court below to take up the case on
Crl.A.255/2008 4
30.4.2008. The appellant shall also produce a copy of this
judgment in the court below on or before 30.4.2008 to enable the
Magistrate to comply with and abide by the directions given
above. The appeal is thus allowed by way of remand.
K.P.BALACHANDRAN, JUDGE
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