This is an appeal instituted under Section 378 of the Code of Criminal Procedure to challenge the order of acquittal rendered by the Judicial First Class Magistrate Court, Ottapalam in Summary Trial case No.3122 of 2008 whereby the accused has been acquitted under Section 256(1) of the Cr.P.C due to the absence of the complainant on that day. The Summary Trial case arose out of a private criminal complaint instituted by the appellant herein (complainant) alleging that the accused (1st respondent herein) had committed the offence alleged under Section 138 of the Negotiable Instruments Act for the alleged dishonour of the cheque in question for an amount of Rs.4.5 Lakhs. The impugned order dated 13.01.2010 of the court below reads as follows: “The above complaint has been filed by the complainant u/s 138 of the Negotiable Instruments Act. Complainant not present for oral evidence inspite of directions. Absence of the complainant not condoned. Accused acquitted U/s 256 Cr.P.C.”
2. Heard Sri.V.A Ajaikumar, learned counsel for the appellant, and Sri.P.Jayaram, learned counsel appearing for the 1st respondent and the learned Public Prosecutor appearing for the 2nd respondent State.
3. It is clearly stated by the appellant in paragraph 4 of the appeal memorandum that on 13.01.2010, the appellant has fallen ill and she was laid up with high fever, vomiting, breathlessness and gastroenteritis and the doctor advised her not to travel and to take rest for two days and the counsel was informed about the said fact and the said counsel appearing for the appellant in trial court appeared on 13.01.2008 and informed the learned Magistrate regarding the illness of the appellant by filing application to adjourn the case to another date by condoning the absence of the appellant on that day. But the learned Magistrate without regard to the request made by the counsel for the appellant, dismissed the application filed by the counsel to adjourn the case and acquitted the accused under Section 256(1) of the Cr.P.C by passing the impugned order on 13.01.2010. These averments of the petitioner has not been rebutted by the 1st respondent. The order passed by the learned Magistrate on Crl.M.P No.259-A in the above Summary Trial case dismissing the application for excusing the absence of the complainant has also been produced by the appellant in this appeal. In the said order it is stated by the learned Magistrate that the application for excusing the absence of the complainant is dismissed as no genuine grounds are made out. This Court is of the considered opinion that the said order is erroneous and, in the absence of any convincing materials to disbelieve the version of the appellant about her illness and her inability to appear on that day, the court below ought not have pass such an order. It is only due to the dismissal of the application for excusing the absence that the court below happened to pass the impugned order.
4. This Court is of the considered opinion that the court below ought to have rendered a decision on the merits of the matter instead of shutting out the pleas of the appellant without any opportunity to both sides to present their versions.
In this view of the matter the impugned order is set aside. The Summary Trial Case, S.T No.3122 of 2008 shall stand restored to the file of the Judicial First Class Magistrate Court, Ottapalam. 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 arose in the year 2008, the court below shall take all reasonable measures to ensure that the case is finally disposed of well before September, 2015. Both sides shall appear before the court below on 30.01.2015.
With these observations and directions the Crl.Appeal stands allowed.
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ALEXANDER THOMAS, JUDGE vdv //True Copy// P.A to Judge