Crl. A. No.2076 of 2003

9th September, 2005

Petitioner Counsel: SUMAN CHAKRAVARTHY , SANDEEP T. GEORGE
Respondent Counsel: JACOB SEBASTIAN (for No.1) , P.M.A. KALAM, Public Prosecutor (for No.2)

Cases Cited:
Johnson Vs. State of Kerala, (2005)1 Ker LT 57 [Para PARA6]
Don Bosco Vs. Partech Computers Ltd., (2005)2 Ker LT 1003 [Para PARA6]

JUDGMENT

-This appeal is filed by the complainant against the acquittal of the accused in C.C. No.174 of 2002 on the file of the Judicial First Class Magistrate's Court V (Special Court for Mark List Cases), Thiruvananthapuram,

2. The above case was taken on file on the basis of a complaint filed by the appellant alleging that the accused committed offence punishable under section 138 of the Negotiable Instruments Act, 1881. The learned Magistrate took cognizance of the complaint and acquitted the accused on 13-11-2003 under Section 256(1), Cr. P.C. on the ground that the complainant was absent on the date of posting of the case and no steps were taken by the complainant for proceeding against the accused under Sections 82 and 83, Cr. P.C.

3. Learned counsel appearing for the appellant submits that the absence of the complainant-appellant was not wilful and that the appellant did not appear before the Court on 13-11-2003 as the date of posting of the case was wrongly noted by the clerk of the advocate who had appeared for the appellant in the Court below. Though the grounds urged in the Appeal Memorandum are not convincing, on going through the impugned order this Court finds that the order is illegal and irregular.

4. The trial Court acquitted the accused on the ground that the appellant-complainant failed to take steps under Sections 82 and 83, Cr. P.C. Such an acquittal is not warranted. Since the appellant did not take steps for proceeding against the first respondent-accused under Sections 82 and 83, Cr.P.C., the learned Magistrate ought to have dismissed the complaint under Section 204, Cr. P.C. instead of acquitting the accused. That apart, the order under challenge does not reveal that the Court had taken steps under Sections 72 to 79, Cr.P.C. The Court cannot proceed under Sections 82 to 83, Cr.P.C. unless the procedures contemplated under the above sections are completed. Chapters IV, V and VI, Cr.P.C. deal with issuance of summons, warrants, both bailable and non-bailable, and taking steps under Sections 82 and 83, Cr. P.C. All these steps are intended to compel the accused to appear in Court.

5. It is to be noted as per Rule 207 of the Criminal Rules of Practice, the petitioner in a private complaint is under the obligation to pay batta and other expenses for issue of summons or such other process against the accused and if any default is made by the complainant, the complaint itself can be dismissed for default or for non-prosecution and the Court may not be justified in acquitting the accused. Further, if the Court finds that the steps taken by the complainant are sufficient, it is the duty of the Court to take coercive steps prescribed under Chapters IV, V and VI, Cr. P.C. A reading of the impugned order would not show that the trial Court had followed the above procedures. The mere absence of the complainant by itself cannot be taken as a ground to acquit the accused.

6. The impugned order is also not sustainable in the light of the principles laid down by this Court in the decisions reported in Johnson Vs. State of Kerala, (2005)1 Ker LT 57 and Don Bosco Vs. Partech Computers Ltd., (2005)2 Ker LT 1003. In the above circumstances, this Court is of the view that the order under challenge is liable to be set aside. The impugned order is accordingly set aside and the matter is remanded to the Court below for fresh consideration as per law.

The. Crl. Appeal is allowed by way of remand. The parties shall appear before the trial Court on 25-11-2005.

Appeal allowed.