M/S.Kerala State Poultry Development v. State Of Kerala And Another
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 30TH DAY OF OCTOBER 2015/8TH KARTHIKA, 1937 CRL.A.No. 2203 of 2011 (A) --------------------------- AGAINST THE ORDER IN Crl.L.P. 1125/2011 of HIGH COURT OF KERALA DATED 21-12-2011 AGAINST THE ORDER IN CC 1282/2007 of ADDL. CHIEF JUDICIAL MAGISTRATE,THIRUVANANTHAPURAM DATED 20-10-2011 APPELLANT/COMPLAINANT:
---------------------- M/S.KERALA STATE POULTRY DEVELOPMENT CORPORATION LTD., PETTAH THIRUVANANTHAPURAM REPRESENTED BY M.B.AJAYAKUMAR FINANCE MANAGER.
BY ADVS.SRI.K.SIJU SMT.BINDU GEORGE RESPONDENTS/RESPONDENTS:
-----------------------
1. STATE OF KERALA AND ANOTHER REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
2. P.P.UMMER POPULAR AGENCIES, MANKADA P.O MALAPPURAM DISTRICT. 679 324.
R2 BY ADV. SRI.P.K.NIJOY R2 BY ADV. SMT.C.PRABITHA R1 BY GOVERNMENT PLEADER:SMT M G LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SUNIL THOMAS, J.
============================== Crl.A.No.2203 of 2011 ============================== Dated this the 30th day of October, 2015
JUDGMENT
Appellant is the complainant who filed C.C.No.1282 of 2007 before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram for offence punishable under Section 138 of the Negotiable Instruments Act on the strength of a cheque for a sum of Rs.1,65,585/-. Thereafter, the accused appeared and the matter was being posted to several days for evidence. Ultimately, it was posted to 20.10.2011 for evidence as last chance. The complainant was absent and no application was filed to condone his absence. Consequently, the accused was acquitted invoking Section 256(1) of the Cr.P.C. This is assailed in this appeal. 2.
The second respondent/accused has appeared. Heard both sides. It appears that the appeal can be disposed of on the basis of the admitted facts itself.
3.
It is evident that the case stood posted for evidence as last chance to 20.10.2011. The accused was present and the complainant was absent. In the above circumstance, Court cannot be found fault with for having passed such an order.
Crl.A.2203/11 4.
Learned counsel for the appellant, however brought to my notice that the case was pending since 2007. The accused was acquitted in 2011. Evidently, the matter was being prosecuted by the complainant diligently. The appellant has also referred to the earlier posting date of 11.11.2010 and 02.03.2011 that the case stood adjourned by notification. It cannot be assumed that in the above circumstance, especially when the amount involved is substantial, complainant would purposefully would remain absent and invite an adverse order. Court would have been justified in granting one more opportunity to the complainant to prosecute the matter. In the circumstance, I feel that a lenient view is liable to be taken. Hence, I am inclined to allow the appeal. In the result, the appeal is allowed. Impugned order is set aside and the matter is remanded to the court below to enable the complainant to prosecute the matter. Both sides shall appear before the court below on 16.12.2015.
Sd/- SUNIL THOMAS Judge Sbna