IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2093 of 2009()
1. S.SUJAN, RAM RAJ BHAVAN,
... Petitioner
Vs
1. K.RAVEENDRAN,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.JOHNSON GOMEZ
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :28/07/2010
O R D E R
V.K.MOHANAN, J.
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Crl. APPEAL No.2093 of 2009
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Dated this the 28th day of July, 2010.
J U D G M E N T
This appeal is preferred challenging the order dated 29.8.2009
in S.T.No.21/08 of the court of Judicial First Class Magistrate Court-
III, Kollam, by which the accused, who was facing charge u/s.138 of
Negotiable Instruments Act upon a complaint preferred by the
appellant, is acquitted. On 1.10.2009 a learned Judge of this court
granted special leave to prefer this appeal and accordingly the notice
was served on the 1st respondent. But today when the matter is
taken up for consideration, nobody has turned up and no objection is
raised against the appeal.
2. I have heard the learned counsel appearing for the appellant
and also perused the judgment of the court below.
3. The learned counsel for the appellant submitted that, the
cheque in question covers an amount of Rs.50,000/- and evidence
was recorded in the above case and the case was stood posted on
22.7.2009 for the examination of the accused u/s.313 of Cr.P.C., on
which date the accused was absent and hence the bail bond was
Crl. APPEAL No.2093 of 2009
2
cancelled and ordered NBW against him. The learned counsel
submitted that on 22.7.2009 itself, the complainant/appellant had took
steps to execute the warrant.
4. It is also the contention that the order passed by the court
below is not exclusively a criminal court but also functioning as a
Munsiff’s court. According to the learned counsel, usually civil cases
are being called in the morning session of the court and after lunch,
the criminal cases were being taken. But though the civil cases were
not posted during the sitting of the court, held during the vacation of
civil court, connected with the holidays, the complainant as well as
the counsel for the petitioner were under the mistaken impression
that, their criminal case would be taken only after the noon session,
since they failed to notice the change in the schedule and thus when
the case was called in the morning of 29.8.2009, neither the
complainant nor his counsel was present and it was under the above
circumstances, the impugned order was passed.
5. The above submission of the learned counsel is not
controverted. Having regard to the facts and circumstances involved
in the case, especially when the evidence of the complainant has
already been over and posted for 313 examination of the accused
Crl. APPEAL No.2093 of 2009
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and especially considering the procedure and work-arrangement of
the court below, which was functioning as a Munsiff’s Court also, I am
of the view that the learned Magistrate ought not have issued such an
order of acquitting the accused u/s.256(1) of Cr.P.C. I am of the view
that, instead of passing an order u/s.256(1) of Cr.P.C., the learned
Magistrate ought to have granted one more opportunity to the
complainant and to have a decision on merit. Therefore, this appeal
can be disposed of granting one more opportunity to the appellant to
prosecute the matter and to have a decision on merit.
In the result, this appeal is disposed of setting aside the order
dated 29.8.2009 in S.T.No.21/08 of the Court of JFCM-III, Kollam,
and accordingly the appellant is directed to appear before the trial
court on 31.8.2010, on which date the learned Magistrate is directed
to restore the complaint on file and proceed with the same after
securing the presence of the accused and to dispose the complaint
on merit.
V.K.MOHANAN,
Judge.
ami/