This is an appeal filed under Sec.378(4) of the Cr.P.C to challenge the order dated 8.2.2010 rendered by the Judicial First Class Magistrate Court-II (Mobile), Kottayam in S.t.No.2319/2009 whereby the accused has been acquitted under Sec.256(1) Cr.P.C. The summary trial case arose out of a private criminal complaint instituted by the complainant herein before the court below alleging that the accused (1st respondent) has committed the offence punishable under Section 138 of the Negotiable Instruments Act for the alleged dishonour of cheque in question for Rs.10.5 Lakhs. The impugned order dated 8.2.2010 of the court below reads as follows:
“This is a case based on a complaint filed under section 138 of the N.I Act against the accused.
2. Originally the case was filed before the Judicial First Class Magistrate Court-III, Kottayama nd it was made over to this court.
3. On the appearance of the accused, copies of all relevant records were furnished to him. Particulars of offence were read over and explained to which accused pleaded not guilt.
4. The case posted for evidence. No proof affidavit filed even though various opportunity given to the complainant. Complainant absent and no representation. Hence complaint is dismissed and accused is acquitted under section 256(1) Cr.P.C.”
2. Crl.Appeal was admitted and notice was issued to the 1st respondent on 25.2.2011. Thereafter it has been recorded by the Registry as per the endorsement dated 8.12.2014 that service has been completed on the 1st respondent and that the Public Prosecutor has entered appearance for the 2nd respondent. But, in spite of notice, there is no appearance on behalf of the 1st respondent.
3. Heard Smt.N.Sudha, learned counsel for the appellant and learned Public Prosecutor appearing for the 2nd respondent.
4. It is urged in ground 'D' of this appeal memorandum that the court below ought not have acquitted the accused without considering the merits of the case and that the court below failed to note that initially the case was adjourned from 15.1.2010 to 15.2.2010 and subsequently in the absence of the complainant and his counsel, the court below again advanced the case to 15.2.2010 itself on the appearance of the accused and had recalled the warrant issued against him and granted bail to the accused and thereafter adjourned the case to 23.1.2010. On 23.1.2010, in the absence of the complainant adjourned the case to 8.2.2010. the advancement of the case consequent on the appearance of the accused after the case was called on 15.1.2010 on the same day was done without notice to the complainant and his counsel and complainant and his counsel did not have any intimation that the case was advanced on the same and thereafter adjourned to 8.2.2010 in spite of earlier posting made to 15.2.2010 as stated above. It is due to this reason that the complainant and his counsel could not be present before the court below when the case stood posted to aforementioned new date viz, 8.2.2010. These crucial averment of the appellant has not been rebutted by the 1st respondent. Moreover, the appellant has produced certified copy of the order sheet of the court below which reads as follows:
“27.7.2009: Complainant present. Issue summons to accused to 19.8.2009.
19.8.2009: Issue summons to accused to 23.9.2009. 23.9.2009: Adjourned to 21.10.2009 21.10.2009: Issue summons to accused to 16.11.2009. 16.11.2009: Issue NBW to accused to 14.12.2009.
14.12.2009: Issue NBW to accused to 15.1.2010.
15.1.2010: Issue NBW to accused take M.C warrants S.I. Of Police to 15.2.2010 15.1.2010: Case advanced warrant recalled and executed. Bail granted to accused on executing bond for Rs.10,000/- with two solvent sureties each for the like amount. P/o. Read over and explained he pleaded not guilty for evidence complaint should like proof affidavit to 23.1.2010.
23.1.2010: Complainant file proof affidavit as last chance. Accused prays for evidence both parties should be present to 8.2.2010.”
Therefore this Court is constrained to hold that the court below has committed error in subsequently posting the case to 8.2.2010 after advancement of the case on 15.1.2010, without notice to the appellant and his counsel. Hence the court below ought to have appreciated these aspects of the matter and should have adjourned the case to 15.2.2010 at least when the case was taken on 8.2.2010. In this view of the matter, disposal of the complaint due to the non-appearance of the complainant and the resultant acquittal of the accused under Sec.256(1) Cr.P.C is ultravires and illegal. Accordingly, the impugned order dated 8.2.2010 of the Judicial First Class Magistrate Court-II (Mobile), Kottayam in S.T.No.2319/2009 is set aside. S.T.No.2319/2009 shall stand restored back to the court below. The court below shall decide the case on merits after giving reasonable opportunity to both sides and in accordance with law. Having regard to the fact that the case was instituted in the year 2009, it is further ordered, in the interest of justice, that the court below shall finally dispose of the case within an outer time limit of six months from date of produced of a certified copy of this judgment.
bkn/-
ALEXANDER THOMAS, Judge.