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Judgment
K. Ramakrishnan, J.—This criminal miscellaneous case is filed by the petitioner, who is the complainant in C.C. 162/2011 on the file of the Judicial First class Magistrate Court-VII, Ernakulam, challenging the order passed by the court below by Annexure-C, under Section 482 of the Code of Criminal Procedure.
It is alleged in the petition that, the petitioner is the complainant filed private complaint against respondents 1 to 3, alleging offences under Section 138 of the Negotiable Instruments Act. He has already filed proof affidavit and submitted himself available for cross examination on two days. However, the case was adjourned at the instance of the accused. Meanwhile he was diagnosed with round cell neoplasm of left lung and advised to take absolute rest for three months. Though he filed an application for adjournment with medical certificate. But court is insisting for the presence of the petitioner and passed Annexure-C order, directing the petitioner to appear on 28.06.2014 and it is now posted to 23.07.2014 for that purpose. So he has no other remedy, except to approach this court, to get reasonable time and so he filed this application, seeking the following relief:
"It is prayed that this Hon''ble Court be pleased to quash Annexure-C judgment and to direct the court below to afford reasonable time to the petitioner to appear for cross examination in C.C. No. 162/2011".
Considering the nature of relief claimed in the petition, this court felt that the petition can be disposed of at the admission stage itself, after hearing the learned Public Prosecutor appearing for the 4th respondent and dispensing with notice to respondents 1 to 3.
The counsel for the petitioner submitted that, he is now diagnosed with cancer and he has been advised bed rest and treatment. So he wants some breathing time to conduct the case. In fact he was diligent in conducting the case and even filed proof affidavit.
The application was opposed by the learned Public Prosecutor.
The grievance of the complainant was that, the court below is insisting for his presence to proceed with the case. Though he had filed an application for an adjournment, on the ground that he is undergoing treatment for cancer and he wants only a breathing time, as he is eager to dispose of the case at the earliest. Court cannot be found fault in 138 matters for compelling the presence of the parties to dispose of the case at the earliest possible time, as the statute itself mandates that, the cases under Section 138 of the Negotiable Instruments Act has to be disposed of within six months of filing of the application. Further, the Hon''ble Supreme Court also in the recent decision held that, "endeavor must be made to dispose of the case at the earliest so as to honour the mandate of the statute". But that does not mean that, in appropriate cases where the presence of the party could not be procured due to some illness or otherwise for reasonable cause no adjournment can be granted and in such cases some time will have to be provided by the court, to enable the parties to appear and contest the case. In this case, it appears that the petitioner is suffering from cancer and he is undergoing treatment and he had produced document to prove that fact also before the court below.
So under the circumstances, this court feels that, some breathing time will have to be given to the petitioner to recover from his illness and conduct the case, as he had already filed a proof affidavit and as per the allegations in the petition, the case was adjourned at the request of the accused for cross examination. So considering the circumstances, the petition is disposed of as follows:
The lower court is directed to grant two months time to the petitioner to appear and contest the case, till then, the presence of the petitioner need not be insisted by the court below. He may be permitted to appear through counsel during that time. If the petitioner does not appear after two months from today and proceed with the trial of the case, then the learned magistrate is directed to dispose of the case in accordance with law.
With the above direction and observation, the criminal miscellaneous case is disposed of. Office is directed to communicate this order to the concerned court, immediately.