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. 1693 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.640/2004 Dated 13/10/2004 ST.2891/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, OTTAPPALAM .................... APPELLANT: COMPLAINANT: -------------------------- K. UNNIKRISHNAN, S/O. VALLI, AGED 30, VALLIKKUDI HOUSE, KULIKKILIYAD, OTTAPPALAM. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: ACCUSED & STATE: ------------------------------- 1. P. SASIDHARAN, PUTHURKALAM HOUSE, KULIKKILIYAD, OTTAPPALAM. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.V.CHITAMBARESH FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN 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. 1693 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T.No. 2891 of 2001 on the file of the Judicial First Class Magistrate Court, Ottapalam against the order of acquittal dt. 26.7.2004. That was a case filed by the complainant against the first respondent for the offence punishable under Section 138 of the N.I. Act. On 26.7.2004, the accused was acquitted under Section 256(1) Cr.P.C. rejecting the application filed by the counsel for the complainant for adjournment. 2. Heard learned counsel for the appellant and the learned counsel for the first respondent. 3. The learned counsel for the appellant submitted that the complainant could not be present before the court below on 26.7.2004 as he was laid up due to blood pressure and the Crl.A. No. 1693 of 2004 2 counsel for the complainant filed an application for adjournment showing this reason. But the learned Magistrate rejected that application. The order under challenge shows that on 26.7.2004 the accused was also absent, but the learned Magistrate allowed his application for exemption. 3. 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. 4. Since the complainant filed an application for adjournment through his counsel due to his illness, the acquittal of the accused is Crl.A. No. 1693 of 2004 3 not proper. Under the above circumstances it would be just and reasonable to set aside the order of acquittal. 5. Accordingly this appeal is allowed. The order in S.T.No. 2891 of 2001 on the file of the Judicial First Class Magistrate, Ottapalam acquitting the accused under Section 256(1) Cr.P.C. is set aside and the complaint is restored to file. The learned Magistrate is directed to proceed with the trial of the case in accordance with law. Both parties are directed to appear before that Court on 21.12.2010 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm