IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 601 of 2010()
1. USHA, AGED 45 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. R.RAJAN,
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :25/03/2010
O R D E R
V.K.MOHANAN, J.
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Crl.A.NO. 601 OF 2010
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Dated this the 25th day of March, 2010
J U D G M E N T
By order dated 15.1.2010 in S.T.No.3379 of 2008,
which is a case instituted upon the complaint preferred by
the appellant for the offence punishable under Section 138
of the Negotiable Instruments Act, the accused was
acquitted under Section 256(1) of the Cr.P.C.
2. Learned counsel submitted that the cheque in
question covers an amount of Rs.40,000/- and there is no
decision on merit. Learned counsel further submitted that
a proper application was filed before the court below to
condone the absence of the complainant as she was laid up
due to severe fever.
3. From the impugned order, it can be seen that the
learned Magistrate issued the order on the ground that in
spite of the specific direction to the complainant to be
present and to adduce oral evidence on the date of the
impugned order, she has not turned up and no evidence
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was adduced. But from the order, it appears that no
reason is assigned by the learned Magistrate to dismiss the
petition filed by the complainant to excuse her absence.
From the cause title, it appears that the case pertains to the
year 2008 and it is also borne out from the records that the
cheque in question covers an amount of Rs.40,000/-. Under
the above factual back ground, without assigning reason for
rejecting the application of the complainant to excuse her
absence, the order passed by the learned magistrate under
Section 256(1) of Cr.P.C. appears to be not correct and the
learned Magistrate ought to have granted one more
opportunity to the complainant to prosecute the appeal. At
the same time, it is also relevant to note that the
complainant was absent in spite of the specific direction for
her presence and the application for excusing the absence
was not accompanied by any certificate showing the illness,
if any. Under the above circumstances, I am of the view
that this appeal can be disposed of on terms, which will be
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sufficient to meet the ends of justice.
In the result, this appeal is disposed of setting
aside the order dated 15.1.2010 in S.T.No.3379 of 2008 of
the Court of the Judicial Magistrate of First Class,
Ottappalam on condition that the appellant/complainant
deposits a sum of Rs.1000/- (Rupees One Thousand only) in
the court below. Accordingly, the appellant/ complainant is
directed to appear before the court below on 27.4.2010 and
the court below is directed to restore the complaint on file
on satisfaction that the complainant has deposited a sum of
Rs.1000/- and to proceed with the complaint in accordance
with law and procedure and to dispose of the same on
merit. Out of Rs.1000/-, which will be deposited, Rs.500/-
shall be given to the accused and the remaining shall be
deposited into the State Exchequer.
This Criminal Appeal is disposed of as above.
V.K.MOHANAN,
MBS/ Judge.
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