IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 CRL.A.No. 284 of 2010 ----------------------- ST.1525/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... APPELLANT: PETITIONER/COMPLAINANT ------------------------------------ S.GOPAKUMAR, S/O.SIVASANKARAN THAMPY, SREEVALSOM, MUDAVOORPARA, VEDIVACHANOIL P.O., BALARAMAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENTS: ACCUSED ---------------------- 1. S.SREEKUMAR.K, PROPRIETOR, M/S.SANKAR CLINICAL LABORATORY, SREE CHITHIRA, T.C.33/2360, VARA NO.402, ARAPPURA, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLI PROSECUTOR SRI PUZHAKKARA MUHAMMED ADV. SRI.SHAJIN S.HAMEED FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.A.NO. 284 OF 2010 ======================= Dated this the 2nd day of June 2011 JUDGMENT This appeal is filed before this Court by the complainant in S.T.No.1525/2007 on the file of the Judicial First Class Magistrate-III, Thiruvananthapuram. The first respondent herein is the accused in that case which was filed by the complainant/appellant against the first respondent/accused alleging commission of the offence under Section 138 of the Negotiable Instruments Act relating to dishonour of a cheque. On 25/11/2009, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256(1)Cr.P.C. due to non-appearance of the complainant. Against that order, the complainant filed this appeal. CRA 284/2010 -2- 2. Heard the learned counsel for the appellant, the learned counsel for the first respondent and the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that after the appearance of the 1st respondent/accused before the trial court, the case was posted to several dates. The case was posted on 14/8/2008 for evidence of the parties. On that day, the complainant/appellant was present for adducing evidence, but the case was adjourned to 9/12/2008 and to 15/9/2009. There was no sitting on 15/9/2009 and the case was adjourned to 25/11/2009. On that day, the complainant could not appear before the trial court for the reason that he was laid up and bed ridden due to pneumonia. An application for adjourning the case to another day was also filed before the trial court which was rejected by the learned Magistrate on 25/11/2009 and acquitted the accused under Section 256(1)Cr.P.C. as per the impugned order dated 25/11/2009. 4. Thus, according to the learned counsel for the appellant, the complainant was prosecuting the case against the first respondent with bona fides and the non-appearance of the CRA 284/2010 -3- complainant before the trial court on 25/11/2009 when the case was posted for evidence was beyond his control as he was laid up. Of course, it is mentioned in the impugned order that the learned Magistrate was not satisfied of the reason stated in the application filed by the complainant and the application was rejected. It is true that no medical certificate has been produced by the complainant to prove that he was laid up due to pneumonia as stated in this appeal on that specific date when the case was posted for evidence. 5. An order under Section 256(1)Cr.P.C. acquitting the accused is a final order of acquittal which operates as a bar under Section 300 Cr.P.C. to the trial of the accused for the same offence. Therefore, that order must show the wide discretion vested in that court has been properly exercised. Since the order under challenge was passed without examining the question whether there was sufficient reason for the complainant for his absence on that date as represented by the counsel appearing for the complainant and as mentioned in the petition filed by him for condoning his absence etc. Hence, the order dismissing the complaint and acquitting the accused under Section 256(1)Cr.P.C.is liable to be set aside in the interest of CRA 284/2010 -4- substantial criminal justice. 6. Accordingly, this appeal is allowed. The order in S.T.No.1525/2007 on the file of the Judicial First Class Magistrate-III, Thiruvananthapuram acquitting the accused under Section 256(1)Cr.P.C. is set aside and the complaint is restored to file and the learned Magistrate is directed to proceed with the trial of the case after issuance of formal notice to both parties of the next date to be fixed by the learned Magistrate in the case. Send back the lower court records, if any, immediately. Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY P.S. TO JUDGE CRA 284/2010 -5-