This Criminal Appeal has been filed under Section 378 (4) of the Cr.P.C. to impugn the order dated 20.3.2014 of the Court of Judicial First Class Magistrate-III, Thiruvananthapuram, in C.C.No. 810/2011, whereby the complaint preferred by the appellant was dismissed for non-appearance of the complainant, leading to the acquittal of the accused under Sec. 256(1) of the Cr.P.C. The Calendar Case arose out of a private criminal complaint preferred by the appellant herein alleging that the accused (1st respondent herein) has committed the offence punishable under Sec. 138 of the Negotiable Instruments Act for the dishonour of the cheque in question. The impugned orders reads as follows: “This is a complaint filed by the complainant u/s. 138 of the Negotiable Instruments Act.
Complainant and accused are represented. Complainant did not adduce any evidence though this case stood posted 5 times from 17.07.13 onwards for evidence. For the last 3 postings complainant is absent. Complainant did not put forward any reasonable explanation for his non appearance. Non appearance of the complainant or the dates posted for evidence cause undue hardship to the accused. So, accused is acquitted u/s. 256(5) Cr.P.C..”
2. Heard Sri.V.Madhusudhanan, learned counsel appearing for the appellant, Sri.G.Sudheer, learned counsel appearing for the 1st respondent and the learned Public Prosecutor appearing for the 2nd respondent-State.
3. It is stated in Ground C of the appeal memorandum that on 17.7.2013, the case was posted to 31.8.2013 before the Adalath to settle the matter between the parties and that the matter could not be settled and it was posted for taking evidence on 19.2.2014 and that as both the appellant and the 1st respondent were absent, it was posted to 2.4.2014 and by notification, the case was posted to 7.6.2014. Since the appellant, who is working as a Senior Civil Police Officer in the Armed Reserve Police Camp, could not take leave on that day, he submitted absence application and the case was posted to 28.6.2014. On 28.6.2014 also the appellant was not able to appear before the court, because he could not secure leave or absence from his departmental official duties as Civil Police Officer and he submitted application and that the case was posted to 23.7.2014. It is further submitted that due to some unavoidable personal inconvenience the appellant was not able to appear before the court below on 23.7.2014 and hence on that day, the court below acquitted the 1st respondent under Sec. 256(1) Cr.P.C. It is submitted that only due to non-availability of leave to remain absent from his official duties and due to unavoidable circumstances as stated above, the appellant could not appear before the court below on the date for taking evidence and there was no willful negligence or laches on the part of the appellant in not appearing on the dates concerned before the court below. It is thus urged that the court below went wrong in not considering the application submitted by the appellant for excusing his non- appearance on the above dates.
4. In view of the aforementioned aspects, this Court is of the considered opinion that the court below ought to have rendered a decision on merits instead of acquitting the accused under Sec.265(1) due to the non-appearance of the complainant on the day in question. In this view of the matter, the impugned order is set aside. The court below shall render a decision on merits after reasonable opportunity to both sides and in accordance with law. As the Calender Case is of the year 2011, it is further ordered in the interest of justice that the court below shall endeavour to finally dispose of the case well before the end of June, 2015. The appellant and the 1st respondent shall appear before the court below on 22.12.2014 at 11 a.m.
With these observations and directions, the Criminal Appeal stands allowed.
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sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge