IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 CRL.A.No. 2064 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.711/2004 Dated 23/11/2004 ST.32/2004 of OF THE SPECIAL JUDICIAL FIRST CLASS MAGISTRATE FOR MARAD CASES, KOZHIKODE. .................... APPELLANT/COMPLAINANT: ------------------------------------------ A.M.VASUDEVAN, S/O.POKKEN, AGED 60 YEARS, PROPRIETOR, M/S.VAS WOOD INDUSTRIES, KALLAI, CALICUT. BY ADV. SRI.K.VINOD CHANDRAN RESPONDENT/ACCUSED: ---------------------------------- V.P.HARIDASAN, J/T, SCP, S.RAILWAY, KALLAI RAILWAY STATION, CALICUT-673 003. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON 12/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 2064 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No.32 of 2004 on the file of the Special Judicial First Class Magistrate - VI for Marad Cases, Kozhikode against the order of acquittal under Section 256(1) Cr.P.C. dt.6.3.2004. That was a case filed by the complainant against the respondent herein for the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.10,200/- On 6.3.2004, the complaint was dismissed and the accused was acquitted under Section 256(1) Cr.P.C. as the complainant was absent and there was no representation. 2. Heard learned counsel for the appellant. 3. Learned counsel for the appellant submitted that the complaint was originally filed by the complainant before the Chief Judicial Magistrate Court, Kozhikode on 23.1.2004 and Crl.A. No. 2064 of 2004 2 the case was adjourned to 28.2.2004 for taking sworn statement. The learned counsel for the appellant submitted that on 28.2.2004 the complainant and his counsel were present before the Chief Judicial Magistrate Court, but the case was not called. On enquiry, it was found from the Court diary that the matter was already transferred to another Magistrate Court. When the case was called before the Special Judicial First Class Magistrate - VI for Marad Cases on 28.2.2004 there was no representation for the complainant and the learned Magistrate adjourned the case to 6.3.2004 for disposal. On 6.3.2004 also there was no representation for the complainant and therefore the complaint was dismissed and the accused was acquitted under Section 256(1) Cr.P.C. 4. Learned counsel for the appellant submitted that the non- appearance of the complainant was not in any manner wilful or deliberate and was due to the fact that the transfer of the case was wrongly noted in the diary as made over to J.F.C.M. - III and not Special J.F.C.M. Court - VI for Marad Cases. Crl.A. No. 2064 of 2004 3 5. 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 of 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. 6. The order under challenge shows that the complaint was dismissed and the accused was acquitted due to the absence of the complainant. When the Magistrate dismissed the complaint for default, the Magistrate should record reasons as to why he does not deem it appropriate to adjourn the hearing. Since the case was received on transfer from the Chief Judicial Magistrate Court, the learned Magistrate ought not have dismissed the complaint and acquitted the accused without ascertaining whether the complainant Crl.A. No. 2064 of 2004 4 had proper notice of the transfer of the case. Under the above circumstances it would be just and reasonable to set aside the order of acquittal and restore the complaint to file. 7. Accordingly this appeal is allowed and the order dismissing the complaint and acquitting the accused under Section 256(1) Cr.P.C. in S.T.No. 32 of 2004 on the file of the Special Judicial First Class Magistrate for Marad Cases, Kozhikode dt. 6.3.2004 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 complainant is directed to appear before that Court on 21.12.2010 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm