This is an appeal instituted under Sec.378(4) of the Cr.P.C. to impugn the order dated 11.12.2013 of the Court of Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, in Calendar Case C.C.No.358/2011, whereby the accused has been acquitted under Sec. 256(1) of the Cr.P.C. on the ground that the complainant was absent on that day. That calendar case arose out of a private complaint filed by the appellant herein (complainant herein) alleging that the accused (respondent No.2 herein) has committed the offence under Sec. 183 of the Negotiable Instruments Act, for the alleged dishonour of the cheque in question for an amount of Rs. 6.8. lakhs. The impugned order dated 11.7.2013 reads as follows: “Complainant absent. No representation. Accused represented. Accused is acquitted u/s.256(1) Cr.P.C.”
2. Notice was issued in this criminal appeal on 7.8.2013 and it is endorsed by the Registry that service of notice on R-2 has been completed.
3. Heard Sri.Dheerendra Krishnan, the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent-State.
4. It is urged in para 4 of this appeal memorandum that the complainant was present on almost all the posting dates and was represented by his counsel and was diligently prosecuting the complaint and that the accused had appeared through his counsel and even without enlarging the accused on bail, personal exemption was granted to her and the plea on the question of guilt or otherwise was not also recorded. On 24.4.2013 the case was adjourned to 28.6.2013 for recording the plea of the accused. On 28.6.2013, both the complainant and the accused represented and were directed to take steps for production of the cheque and the case was posted to 11.7.2013. On 11.7.2013 the complainant was absent and the accused was acquitted under Sec.256(1). It is further urged in Ground F of the appeal memorandum that the original cheque in question was produced before the High Court in relation to certain disputed questions in a civil suit and the cheque was forwarded by the High Court to the Judicial First Class Magistrate's Court, Perumbavoor, for forwarding it to the Forensic Science Laboratory for examination and that the appellant was unable to cause the production of the said cheque as only the criminal trial court competent to try the present criminal case has the power to recall the said cheque from the Judicial First Class Magistrate's Court, Perumbavoor. Further, when the case was posted on 11.7.2013, the appellant contacted his lawyer and intimated him that his close relative had passed away and had requested to seek adjournment for a day and the counsel who was appearing for the appellant was laid up due to viral fever and he entrusted the case to the junior counsel to represent the case. But unfortunately, when the case was called, none could represent the appellant which payed way to the acquittal of the accused as per the impugned order. Further, it is urged in Ground E of the appeal memorandum that without recording the plea on the question of guilt or otherwise of the accused, the trial in summons case could not be commenced and the presence of the appellant before the court on 11.7.2013 was not at all necessary for evidence.
5. The appellant has also produced copy of the B diary proceedings of the court below in C.C.No.358/2011 as Annexure-I in the Criminal Leave Petition. It is seen from Annexure-I produced in the Criminal Leave Petition that on 7.3.2012, the matter, inter alia, was only adjourned to 16.7.2012 for recording the plea of the accused. On 16.7.2012, the accused was represented by counsel and again the matter was adjourned to 5.11.2012 for recording the plea of the accused. On 5.11.2012, as the court was engaged in custody matter and other targeted matter, the case was adjourned to 24.4.2013. On 24.4.2013, the accused was absent and had applied for excuse of absence and complainant was represented by counsel and again the matter was adjourned to 28.6.2013 for recording the plea of the accused. On 28.6.2013 the complainant and the accused represented and steps for causing production of the cheque were ordered to be taken and adjourned to 11.7.2013. On 11.7.2013, the complainant was absent and there was no representation and the accused represented and the accused was acquitted under Sec. 256(1) Cr.P.C. as per the impugned order. Thus it is crystal clear from the B diary proceedings of the court below that the plea on the question of quilt or otherwise of the accused was never recorded by the court below. Further, it is stated by the appellant that the accused, without being enlarged on bail, was allowed to be represented through counsel. Therefore, without recording the plea of the accused on the vital question of guilt or otherwise, the trial in the summary case could not have been commenced and therefore the presence of the appellant before the court below on 11.7.2013 was not necessary for the purpose of taking evidence. Moreover, the appellant has pleaded in paragraph 5 of the appeal memorandum regarding the genuineness of the reasons that compelled him to be absent on that day and as to how the representation could not be effectively made on that day before the court below. There is nothing to disbelieve the version of the appellant on this aspect of the matter. The 2nd respondent accused has not come forward this Court to rebut this pleas of the appellant, even though notice has been served on him.
6. In this view of the matter, this Court is convinced that the impugned order is liable to be set aside and order should be passed so as to facilitate the court below to render a decision on the merits with opportunity to both sides. Accordingly, the impugned order is set aside. The court below shall render a decision on the merits of the matter, after reasonable opportunity to both sides and in accordance with law. Considering the fact that the Calendar Case is of the year 2011, the court below shall endeavour to take all steps to ensure that the case is finally disposed of well before the end of August, 2015.
With these observations and directions, the Criminal Appeal stands allowed as indicated above.
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sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge