IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY, THE 9TH DAY OF NOVEMBER 2015/18TH KARTHIKA, 1937

CRL.A.No. 789 of 2014 ( ) IN Crl.L.P..977/2010

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AGAINST THE ORDER IN CC 63/2009 of JUDICIAL FIRST CLASS MAGISTRATE-III,

KOTTARAKAKARA DATED 23-02-2010

AGAINST THE ORDER IN Crl.L.P. 977/2010 of HIGH COURT OF KERALA DATED

28-09-2010

APPELLANT/COMPLAINANT:

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ANADAMMA W/o.GOPINATHAN

PUTHUPANATHOTTAM, VELIYAM, KOTTARAKKARA

KOLLAM.

BY ADVS.SRI.K.S.MANU (PUNUKKONNOOR)

SRI.P.SREEKUMAR

RESPONDENTS/ACCUSED:

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1. DR.UNNIPILLAI

JOYTHIS, VELIYAM, KOTTARAKKARA

KOLLAM.

2. STATE OF KERALA,

REP. BY THE DIRECTOR GENERAL OF PROSECUTION

HIGH COURT OF KERALA, ERNAKULAM.

R1 BY ADV. SRI.K.V.ANIL KUMAR

R2 BY PUBLIC PROSECUTOR : SMT.LISHA M G

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-11-2015, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

SUNIL THOMAS, J.

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Crl.A.No.789 of 2014

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Dated this the 9^th day of November, 2015

JUDGMENT

The appellant herein as the complainant laid a complaint

under Section 138 of the Negotiable Instruments Act on the

strength of a cheque for a sum of Rs.33,000/-. Accused appeared

and after several posting dates, it stood posted to 23.02.2010. On

that day, there was no appearance for the complainant. The

impugned order also does not show as to whether he was

represented on that day. Accused was also absent. On a reasoning

that though several opportunities were given to the complainant for

giving evidence, she failed to appear before the court below,

accused was acquitted by the Court invoking Section 256(1) Cr.P.C.

The above order is impugned in this appeal.

2.

Heard both sides and examined the records.

3.

Learned counsel for the first respondent contended that

the court below was perfectly justified in passing an order since the

complainant did not turn up in spite of several opportunities

granted. It is to be noted that though the amount is not substantial,

the complaint was filed on 25.07.2007. He has been prosecuting

the matter since then till 23.02.2010, when the accused stood

Crl.A.789/14

2

acquitted. It cannot be stated that the complainant was thoroughly

lethargic in prosecuting the matter and it cannot reasonably be

expected that after prosecuting the matter for three years,

complainant voluntarily remain absent and invite a dismissal of his

complaint. Though, the reason stated for the absence of the

complainant is not fully convincing, still, I am inclined to hold that

the court below would have been more justified if one more

opportunity was granted to the complainant to prosecute the

matter. On that ground, the impugned order is liable to be set

aside.

In the result, the appeal is allowed. The impugned order

is set aside. The matter is remanded to the court below to enable

the complainant to tender her evidence. Both sides shall appear

before the court below on 18.12.2015. The court below shall take

the matter on file and proceed in accordance with law.

Sd/-

SUNIL THOMAS

Judge

Sbna