IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 27^TH DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 CRL.APPEAL NO. 981 OF 2022 AGAINST THE ORDER DATED 15.06.2022 IN C.C.NO.2774 OF 2016 ON THE FILE OF THE SPECIAL COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS FOR THE TRIAL OF CASES UNDER SECTION 138 OF NI ACT, THIRUVANANTHAPURAM (Crl.L.P. 273/2022 OF HIGH COURT OF KERALA)

APPELLANT/COMPLAINANT:

MANIKANTAN NAIR AGED 57 YEARS, S/O. VASUDEVAN NAIR, CHITHIRAM KAZKAKKEVILAKOM, PERUKAVU P.O, THIRUVANANTHAPURAM, PIN – 695573.

BY ADV D.GANESH KUMAR RESPONDENTS/ACCUSED & STATE:

1 C.D MATHEW, T.C NO. 2/405(1), OPP. VIILLAGE OFFICE, KOIPURATHU HOUSE, ULLOOR, MEDICAL COLLEGE P.0, THIRUVANANTHAPURAM DISTRICT, PIN – 695011.

2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031.

R2 BY SMT.SEENA C., PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.G. AJITHKUMAR, J.

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Crl.Appeal No.981 of 2022 -----------------------------------------------------------

Dated this the 27^th day of November, 2023

JUDGMENT

This appeal is filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code). The appellant is aggrieved by the order dated 15.06.2022 of the Temporary Special Court of the Judicial Magistrate of the First Class for the trial of cases under Section 138 of the Negotiable Instruments Act, 1881 (N.I.Act), Thiruvananthapuram. By that order the accused was acquitted under Section 256(1) of the Code. 2. Despite receipt of notice, the 1^st respondent, who is the accused, did not choose to appear before this Court.

3. Heard the learned counsel for the appellant and the learned Public Prosecutor.

4. The appellant field a complaint alleging commission of an offence under Section 138 of the N.I.Act by the 1^st respondent. The reasons for acquittal of the 1^st respondent is stated in paragraph No.3 of the impugned order, which reads thus;

“3. The accused appeared before the court and he has been released on bail on 9.5.2017. Particulars of the offence was read over and explained to the accused of which he pleaded not guilty and claimed to be tried. Thereafter the case was posted or evidence on 17.6.2017. The case was posted for evidence since 2017 on wards. No evidence adduced so far. Inspite of several opportunities. Since the complainant is continuously absent, it is not possible to proceed with the trial, of the case. As per Section 143 of the Negotiable Instruments Act, the case filed alleging offence U/s.138 of Negotiable Instruments Act is to be disposed of within 6 months. Now more than 15 years is already over after the filing of the complaint. There is specific direction by Hon'ble Supreme Court in the decision in Indian Bank Association and Other V. Union of India and Others (2014(2) KHC 330) to the Courts to ensure that examination-in- chief, cross-examination and re- examination of the complainant must be conducted within three months of assigning the case. Since the complainant did not appear before court, the evidence of complainant could not be recorded for a period of 5 years, after the appearance of accused in a case filed in the year 2017. Since the complainant is absent continuously, I find no reason to adjourn the hearing of the case some other day. Hence the accused is to be acquitted for non appearance of the complainant.”

5. It is evident that there occurred inordinate delay in the disposal of the case and therefore there is violation of the provisions of Section 143 of the N.I.Act. But, that shall not be a reason to put an end to the proceedings by acquitting the accused, unless there is a reason justifying such an order. While considering the legality and correctness of the impugned order, the question immediately arises is whether the appellant was grossly negligent in attending the court on the appointed day