Kerala High Court
Santhamma vs S.Lathikakumar on 28 July, 2025
CRL.A NO. 2331/2010 :1:
2025:KER:55386
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
CRL.A NO. 2331 OF 2010
AGAINST THE JUDGMENT DATED 16.11.2010 IN CRL.L.P.
NO.1094 OF 2010 OF HIGH COURT OF KERALA ARISING OUT OF
THE JUDGMENT DATED IN C.C.NO.526 OF 2007 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -IX, THIRUVANANTHAPURAM
APPELLANT/COMPLAINANT:
K.SANTHAMMA, KMRA 89,
MUNDEKKANAM, MUTTADA P.O.,
THIRUVANANTHAPURAM.
BY ADV SHRI.SUBHASH CYRIAC
RESPONDENT/ACCUSED AND STATE:
1 MRS.LATHIKA KUMARI
GOVT.QUARTERS NO.43, RAJEEV NAGAR,
MELARANNUR, KARAMANA P.O.,
THIRUVANANTHAPURAM-695 001.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR
HEARING ON 25.07.2025, THE COURT ON 28.07.2025
DELIVERED THE FOLLOWING:
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JUDGMENT
The complainant in C.C.No.526/2007 on the file of the Judicial First Class Magistrate Court-IX, Thiruvananthapuram, has filed this appeal with the leave of this Court, challenging an order of acquittal passed under Section 256 of Cr.P.C. The said case was registered on the basis of a complaint filed alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, by the accused, who is the 1st respondent in this appeal.
2. Despite the service of notice of this appeal, 1st respondent did not appear. I heard the learned counsel for the appellant as well as the learned Senior Public Prosecutor, who represents the State.
3. A perusal of the records reveals that the complainant had initially approached the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, with a complaint alleging that the accused committed an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence and issued summons to the accused. As evident from the records, the case CRL.A NO. 2331/2010 :3: 2025:KER:55386 was subsequently transferred to the Judicial First Class Magistrate Court-IX, Thiruvananthapuram, where it was numbered as C.C.No.526/2007. Thereafter, the plea of the accused was recorded. Subsequently, on 23.06.2010, the complainant filed an affidavit in lieu of chief examination and marked Exts.P1 to P5 in evidence. However, the case was adjourned for cross-examination of the complainant (PW1) at the request of the accused's counsel. Thereafter, on 03.08.2010 and 12.08.2010, the counsel for the accused sought time for cross-examination of the complainant, and the same was granted by the learned Magistrate and the matter was posted to 26.08.2010. However, on 26.08.2010, as there was no representation for the complainant, the learned Magistrate acquitted the accused under Section 256 of Cr.P.C..
4. While considering whether the said order is liable to be interfered with, it is pertinent to note that there were around 23 different posting dates in the said case. In almost all posting dates, the complainant appeared before the court. The proceedings in this case demonstrate that the complainant was CRL.A NO. 2331/2010 :4: 2025:KER:55386 diligently prosecuting the matter. On 23.06.2010, she filed an affidavit in lieu of chief examination, and the documents produced from her side were marked as Exts.P1 to P5. Notably, on the said date, as well as on 03.08.2010 and 12.08.2010, the subsequent posting dates, the cross-examination of the complainant was adjourned at the request of the counsel for the accused, and the case was posted to 26.08.2010. As evident from the proceeding sheet on 26.08.2010, the complainant was absent and there was no representation for her. Consequently, the learned Magistrate, upon finding that the complainant was not interested in proceeding with the case, acquitted the accused under Section 256 of Cr.P.C.
5. I am of the considered view that the learned Magistrate acted somewhat hastily in passing the order of acquittal. The learned Magistrate, who had shown considerable indulgence by granting three adjournments for cross-examination at the request of the accused, ought to have exercised similar leniency when the complainant failed to appear on a single occasion. Instead of acquitting the accused at the threshold, CRL.A NO. 2331/2010 :5: 2025:KER:55386 the learned Magistrate should have adopted a more pragmatic approach.
6. Considering the totality of the circumstances, it appears that the absence of the complainant was not deliberate or ill-motivated. It is apparent that the learned Magistrate proceeded to pass the impugned order without appreciating the conduct of the complainant in appearing before the court promptly on almost all prior postings. Considering the stake of the matter involved in this case, I am of the view that it is highly necessary that the case be decided on merits, otherwise the same will result in miscarriage of justice.
7. In the result, the order of acquittal dated 26.08.2010 passed by the Judicial First Class Magistrate Court-IX, Thiruvananthapuram in C.C. No.526/2007 under Section 256 of Cr.P.C. is set aside and the matter is remitted to the trial court for disposal in accordance with law. The complainant and the accused shall appear before the trial court on 10.09.2025. The trial court shall ensure that proper notice of the said date is served on the accused.
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Considering the fact that this matter is of the year 2007, the learned Magistrate shall take every endeavour to dispose of the matter as early as possible, preferably within four months from 10.09.2025.
8. Accordingly, the appeal stands allowed. The Registry is directed to forward a copy of this judgment immediately to the trial court concerned.
Sd/-
JOBIN SEBASTIAN
JUDGE
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