IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 CRL.A.No. 1672 of 2005(B) ------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.505/2005 Dated 31/08/2005 ST.2560/2001 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... APPELLANT: COMPLAINANT ------------------------- SURESHAN, S/O.APPUTTY, THEVAR PARAMBIL HOUSE, P.O.ARAKINAR, KOZHIKODE DISTRICT. BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. A.ABDUL KARIM, THASLI COTTAGE, AREEKAD, P.O.NALLALAM, KOZHIKODE DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. M.R. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2010, THE COURT ON 23/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1672 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ..th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 2560 of 2001 on the file of the Judicial First Class Magistrate Court -V, Kozhikode against the order of acquittal of the first respondent herein under Section 256 Cr.P.C. dt.3.11.2003. That was a case filed by the complainant against the first respondent herein alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.30,000/- On 3.11.2003, the accused was acquitted under Section 256 Cr.P.C. as the complainant was absent. 2. Heard learned counsel for the appellant and the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that the appellant/complainant could not be present before the court below on 3.11.2003 as he was laid up with fever and body pain Crl.A. No. 1672 of 2005 2 and the complainant was present in Court on all other hearing dates and there was no wilful laches or negligence on his part. 4. Under Section 256 Cr.P.C, three courses are open to the Magistrate where the complainant is absent on the date of hearing; (i) to acquit the accused or (ii) adjourn the case for a future date or (iii) to dispense with the attendance of the complainant and proceed with the case. An order under Section 256 of the Code 26of Criminal Procedure, which operates as a final order barring a fresh complaint should be passed after proper application of mind and sound exercise of judicial discretion. The order should show the wide discretion that vested in the Court had properly been exercised. 5. Since the complainant was present on all other occasions, the learned Magistrate is not justified in acquitting the accused under Section 256 Cr.P.C. for the absence of the complainant on one occasion. The learned Magistrate has not recorded the reason as to why he does not deem it appropriate to adjourn the hearing of the case. Crl.A. No. 1672 of 2005 3 In the above circumstances it would be just and reasonable to set aside the order of acquittal and restore the complaint to file. 6. In the result, this appeal is allowed. The order of acquittal in S.T.No. 2560 of 2001 on the file of the Judicial First Class Magistrate - V, Kozhikode dt.3.11.2003 acquitting the accused under Section 256 Cr.P.C. is set aside and that complaint is restored to file. The learned Magistrate is directed to proceed with the case in accordance with law. The parties are directed to appear before that Court on 14.1.2011 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm