Kerala High Court
Santhamma vs S.Lathikakumar on 28 July, 2025
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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
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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
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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,
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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
rkr
