IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1158 of 2010()
1. ZAKEER H., AGED 36 YEARS,S/O.HASSAN -
... Petitioner
Vs
1. K.G.YOHANNAN, THEKKUNILKUNNATHIL,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.M.G.KARTHIKEYAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/06/2010
O R D E R
V.K.MOHANAN, J.
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Crl.A.No.1158 of 2010
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Dated this the 30th day of June 2010
J U D G M E N T
This is an appeal preferred by the complainant in a
prosecution for an offence under Sec.138 of the N.I.Act,
challenging the order under Sec.256(1) of Cr.P.C.
2. The learned counsel for the appellant submitted
that a mistake committed by the clerk of the counsel
appearing for the complainant in the court below in noting
the actual posting date of the case and hence when the case
was taken on 18.4.2009 neither the complainant nor the
counsel was present and as such the learned Magistrate
acquitted the accused stating that the absence of the
complainant is willful.
3. In the impugned order the learned Magistrate has
elaborately stated the data’s and particulars which are
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sufficient to gather the sheer negligence on the part of the
complainant. The case was taken on file as
C.C.No.813/2007 of the court of Judicial First Class
Magistrate-I, Adoor and subsequently it was made over to
the present trial court. On receiving the case, the case was
refiled as C.C.No.20/2008. As per the order impugned the
case was called in the open court on 9.1.2009 thereafter
from 7.2.2009 onwards it was being posted for adducing the
evidence of the complainant. On 7.2.2009 when the case
was called, complainant was absent and there was no
representation and no application was also moved. Then
the court issued notice to the complainant and the case was
adjourned to 13.2.2009 for adducing evidence. Thus, when
the case was called on 13.2.2009, the complainant was
again absent and no evidence was adduced. Again it was
adjourned to 20.2.2009 and 6.3.2009. Subsequently, on
these two occasions also, complainant was not present. On
13.3.2009 and 20.3.2009 again the case was adjourned for
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adducing evidence with a specific direction to the
complainant that he should be present and finally posted on
15.4.2009. On 15.4.2009 when the case was called,
complainant was absent and notice was issued to the
complainant as last chance and finally the case was posted
for complainant’s evidence on 18.4.2009. On 18.4.2009 also
the complainant was absent though the accused was
present. On 18.4.2009 he was also not represented by the
counsel and no application was moved. From the above
details it is crystal clear that the complainant is sheer
negligent and he had not availed the opportunities
generously given by the court below to adduce evidence
even though it was for the complainant to prosecute the
matter vigilantly if he is sincere with his case. But in the
present case, though several opportunities are given, the
complainant willfully not appeared before the court and no
evidence was adduced.
4. It appears that an affidavit is filed by the counsel
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appearing for the complainant in the court below, which will
only explanation with respect to the non-appearance of the
complainant on 18.4.2009. There was no explanation as to
why the complainant failed to appear on the previous
posting dates which I indicated earlier. Therefore I find no
reason to interfere with the order passed by the court
below.
Accordingly, there is no merit in the appeal, the
same deserved to be dismissed and I do so.
V.K.MOHANAN, JUDGE.
Jvt