K. NAZARUDEEN Vs. STATE OF KERALA

JUDGEMENT

(1.) ANNEXURE III order passed by the Judicial First Class Magistrate -IX, Thiruvananthapuram, is challenged in this petition. Petitioner is the complainant in a cheque case. After trial the accused in that case, the second respondent herein, was found guilty and convicted. As against the conviction, the accused preferred an appeal. Affirming the conviction the sentence was modified with direction to the accused to appear before the Magistrate to suffer the modified sentence. After disposal of the appeal without noticing that the conviction of the accused has been affirmed and what remained was only execution of the sentence as modified by the appellate court the Magistrate has passed Annexure III order acquitting the accused under Section 256(1) of the Code of Criminal Procedure on the premise that the complainant was absent. Though notice was issued earlier to the second respondent/accused, service remained incomplete. In fact no such service on second respondent is called for to examine the vires of Annexure III order which is shown to be per se unsustainable and illegal. Where there was a termination of the proceeding arising from the complaint case by the conviction of the accused person and what remained was only execution of the sentence as modified by the appellate court, Annexure III order passed by the learned Magistrate was not only improper but illegal. A report was called from the Magistrate with respect to Annexure III order so passed. Report sent by the successor Magistrate would indicate that by inadvertence his predecessor had passed Annexure III order. Annexure III order is set aside. The learned Magistrate is directed to take appropriate steps in accordance with law for execution of the sentence against the second respondent/accused.