This appeal is instituted under Section 378(4) of the Code of Criminal Procedure, to impugn the order dated 13.08.2007 of the Judicial First Class Magistrate's Court - I, Kollam in C.C No.1825 of 2005, whereby the accused was acquitted under Section 256 of the Code of Criminal Procedure. The case arose out of a private criminal complaint instituted by the complainant herein before the court below against the accused alleging the offence punishable under Section 138 of the Negotiable Instruments Act, in respect of the alleged dishonour of the cheque in question. 2. The impugned order has been passed stating the reason that the complainant was absent on 13.08.2007 and that the accused was present and that on the previous posting date it was specifically ordered by the court below that the complainant shall positively appear for giving evidence on the next posting date. It is due to these reasons that the court below has acquitted the accused under Section 256(1) of the Code of Criminal Procedure on the ground that it deemed that the complainant is not interested in the proceedings.
The impugned order reads as follows:
“Complainant absent. Accused present. It was specifically directed last time that complainant shall appear for giving evidence. The counsel for the complainant is also absent. Hence it is deemed that complainant is not interested in the proceedings. Hence case against the a is acquitted u/s 256(1) Cr.P.C.”
3. Notice was issued in this case and notice has been duly served on the 2nd respondent (accused). But, there is no appearance on behalf of the 2nd respondent herein.
4. Sri.Boby Mathew, Koothattukulam, learned counsel appearing for the appellant, would submit that the appellant was actually present in the court below on most of the posting dates and on 09.08.2007 the appellant was absent before the court below and that application was filed on behalf of the appellant and the case was adjourned to 13.08.2007. The posting of the case was intimated to the appellant over telephone by the law chambers of the advocate concerned, who appeared for the appellant before the court below. The appellant had mistakenly noted the posting date of the case as 13.09.2007 instead of 13.08.2007. That on 13.08.2007, one of the senior members of the Kollam Bar, Sri.T.G.Viswanathan, had died and therefore the counsel for the appellant as well as his junior could not attend the court as they had to attend the funeral of the aforementioned senior member of the bar. Another lawyer was entrusted to apply on behalf of the appellant in the absence of the advocates for the complainant. But, the said lawyer also failed to represent the case. The appellant also was absent in the court on 13.08.2007 as he had mistakenly noted the posting date as 13.09.2007. It is in the light of these circumstance that neither the appellant nor his advocates could appear before the court below on 13.08.2007 and that no wilful or intentional latches led to their absence on that day and the finding of the court below that it has been deemed that the complainant is not interested in the proceedings is unjustified and unwarranted in view of the aforementioned facts and circumstances. These factual aspects had been cogently pleaded by the appellant in para 3 of the appeal memorandum in this case. This has not been controverted by the 2nd respondent who has not entered appearance in this case though notice has been served.
5. In the facts and circumstances emerging in this case, this court is of the considered opinion that the interest of justice would be subserved better if a decision is rendered on the matter, instead of technically acquitting the accused under Section 256(1) of the Code of Criminal Procedure on the purported ground of the absence of the complainant and his advocates on the day in question.
In this view of the matter, the appeal is allowed and the impugned order is set aside. The Calendar Case C.C No.1825 of 2005 shall stand restored to the file of the Judicial First Class Magistrate Court - I, Kollam. The court below shall finally dispose of the case on merits after affording reasonable opportunity to both sides and in accordance with law. Since the Calendar Case is of the year 2005 and as seven years have been elapsed after passing of the impugned order, it is ordered that the court below shall endeavour to ensure that the case is finally disposed of well before 30.04.2015.
With these directions and observations the Crl.Appeal stands allowed as indicated above.
Sd/-
ALEXANDER THOMAS, JUDGE.
vdv //True Copy// P.A to Judge