This is an appeal filed under Sec.378(4) of the Cr.P.C to challenge the order dated 28.8.2010 passed by the Judicial First Class Magistrate Court-I, Mavelikkara in C.C.No.760/2009, whereby the complaint has been dismissed due to the non-appearance of the complainant on that day leading to the acquittal of the accused under Sec.256(1) of the Cr.P.C. The calender case arose out of a private criminal complaint filed by the appellant herein (complainant) alleging that the accused (2nd respondent) has committed the offence under Sec.138 of the Negotiable Instruments Act for the alleged dishonour of cheque in question for an amount of Rs. 2 Lakhs. The impugned order rendered on 28.8.2010 reads as follows:
“1. This case is filed by Ratheesh against the accused Anandan for having committed the offence punishable u/S 138 of the N.I Act.
2. Complainant is absent today. On 26.7.2010 and 1.7.2010, there were specific directions to the complainant, to be present in person for rendering evidence. But the complainant did not turn up, nor the counsel representing the complainant advanced any single reason for non appearance.
Hence, it must be assumed that the complainant has no evidence to adduce.
3. In view of the above, accused is acquitted u/S 256(1) Cr.P.C.”
2. Heard Sri.M.V.Thamban, learned counsel appearing for the appellant, Sri.C.S.Ajith Prakash, learned counsel appearing for the 2nd respondent and the learned Public Prosecutor appearing for the 1st respondent-State.
3. Sri.M.V.Thamban, learned counsel appearing for the appellant has urged in paragraph 3 and ground 'D' of the memorandum of this appeal that the case was posted for evidence to 28.8.2010 and that the complainant could not appear on that day since he was out of station in connection with his business. But, the counsel duly represented and the learned Magistrate did not accede to the prayer for adjournment sought due to the inconvenience of the appellant and proceeded to dismissed the complaint leading to the acquittal of the accused. Learned counsel for the appellant would submit that the appellant is a businessman and that due to unavoidable business occupations he could not appear before the court on the day in question. The prayers in the appeal are opposed by the learned counsel appearing for the 2nd respondent.
4. On hearing the learned counsel appearing for the appellant and learned counsel appearing for the 2nd respondent and on a consideration to the totality of the facts and circumstances of this case, this Court is inclined to hold that interest of justice would be subserved by passing necessary orders so as to facilitate the court below to render decision on merits with reasonable opportunity to both sides instead of shutting out the complaint of the complainant at threshold due to the non-appearance of the complainant on the day in question. The learned counsel for the appellant would also rely on the decision of this Court in Joseph v. State of Kerala (2010 (4) KLT 697) and made submissions to fortify his contentions with the aid of that reported decision.
5. Accordingly, it is ordered that the impugned order passed by the court below on 28.8.2010 is set aside. The calender case, C.C.No.760/2009 shall stand restored to the file of Judicial First Class Magistrate Court-I, Mavelikkara. The court below shall render a decision in the case on merits after giving reasonable opportunity to both sides and in accordance with law. Having regard to the fact that the calender case was instituted as early as in the year 2009, it is ordered further, in the interest of justice, that the court below shall endeavour to finally dispose of the case within an outer time limit of six months from the date of receipt of a copy of this judgment.
Criminal appeal stands allowed as indicated above.
bkn/-
ALEXANDER THOMAS, Judge.