This is an appeal filed under Sec. 378 of the Code of Criminal Procedure to impugn the order dated 18.10.2010 of the Judicial First Class Magistrate's Court-VII, Ernakulam, in S.T.No.937/2008, whereby the accused therein has been acquitted for the offence under Sec.138 of the Negotiable Instruments Act due to the absence of the complainant on that day. The summary trial case arose out of the private criminal complaint instituted by the appellant herein alleging that the accused (1st respondent herein) had committed the offence under Sec.138 of the Negotiable Instruments Act, for the alleged dishonour of the cheque in question. The impugned order dated 18.10.2010 of the court below in S.T.No.937/2008 reads as follows: “Complainant absent. Name called. No representation. Accused present. No evidence adduced by the complainant even after repeated chances. Last time also there was no representation for the complainant. Hence the accused is acquitted U/s.256 Cr.P.C..”
2. Though notice was issued in this appeal on 24.6.2011 and service of notice on -1 is completed and P.P. has taken notice in this appeal for R-2, there is no appearance for R-1 in spite of service of notice.
3. Heard Sri.Sabu S.Kallaramoola, learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent-State of Kerala.
4. It is specifically pleaded by the appellant in paras 2 and 3 of the appeal memorandum that even though the case was filed in the year 2008, the accused appeared only in the month of July, 2010 and after his appearance he filed application for permanent exemption and the same was allowed on 20.9.2010 and thereafter, the complaint was posted for evidence to 8.10.2010. When the case was called on 8.10.2010 both sides prayed for an adjournment and the court below adjourned the case to 18.10.2010 for evidence as last chance. On 18.10.2010, the power-of-attorney holder of the complainant company was present in the court and since the counsel for the complainant was engaged in court, he entrusted the case to one of his colleagues, Sri.E.D.George, to represent the same. But due to an inadvertent mistake there was no representation for the complainant. But the power-of-attorney holder was present in the court. The court below failed to notice the presence of the complainant and thereby acquitted the accused under Sec.256(1) of the Cr.P.C..
5. These averments of the appellant have not been rebutted by the 1st respondent.
6. After consideration of the matter, this Court of the considered opinion that the court below ought to have rendered a decision on the merits of the matter with reasonable opportunity to both sides instead of shutting out the case of the appellant altogether, merely due to his absence on the day in question. Moreover, the aforementioned grounds urged by the appellant are reasonable and it is only fair and just that the matter is remanded back to the court below for a decision on merits of the matter. Accordingly, the impugned order is set aside. Accordingly, Summary Trial Case, S.T.No.937/2008 shall stand restored to the file of the Judicial First Class Magistrate's Court-VII, Ernakulam. The court below shall render a decision on the merits of the matter after reasonable opportunity to both sides and in accordance with law. Having regard to the fact that the Summary Trial case was instituted as early as in the year 2008, it is further ordered in the interest of justice that the court below shall take all necessary endeavour to ensure that the case is finally disposed of well before the end of July, 2015.
With these observations and directions, the Criminal Appeal stands allowed as indicated above.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge