IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 CRL.A.No. 1699 of 2009() ------------------------ CC.635/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI. .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ A.M.ASOKAN, S/O.MADHAVAN, AGED 53 YEARS, ANNAPARAMBIL HOUSE, PALLURUTHY, KOCHI-6. BY ADV. SRI.V.B.UNNIRAJ SMT.A.SAIRA SMT.SUNILA SELVAN RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. NAZEEMA IQBAL, W/O.IQBAL, AGED 46 YEARS, VAZHAVELIPARAMBU, HOUSE NO.23/845, THAGAL NAGAR, PALLURUTHY, KOCHI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1699 of 2009 ---------------------------------------------- Dated 14th September, 2010. J U D G M E N T This appeal arises from the order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. 2. The appellant is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The case was adjourned to different dates and on 3.6.2009, the court passed the following order : “Complainant absent. No representation. No steps taken. Dismissed u/s.256(1) Cr.P.C.” The above order is under challenge. 3. Today, when this appeal is taken up for hearing the appellant's counsel is absent. On a reading of the appeal memo,it appears that summons was issued to the accused on several dates, but he did not appear. The case was posted for taking steps, but no steps were taken by the complainant. He was also absent. Hence, the court dismissed the complaint under Section 256(1) of the Code. Crl.A. NO. 1699/09 2 4. A plain reading of Section 256(1) shows that a complaint cannot be “dismissed” under the said section. The order which can be passed under Section 256(1) is an order of “acquittal” and not dismissal. The legal consequences of an order of dismissal and order of acquittal are different. Section 204(4) of the Code gives power to the Magistrate Court to dismiss the complaint, if process fee is not paid within reasonable time. When there is a specific provision to dismiss the complaint for failure to pay the process fee or other fees payable, provision under Section 256 cannot be invoked for dismissing the complaint. 5. The only reason to be stated for acquittal is absence of complainant. Section 256 does not lay down that accused can be acquitted on failure to pay process fee. Hence, the order under challenge cannot be treated as an order passed under Section 256 of the Code, even though section quoted is section 256. This appeal can only be dismissed as not maintainable. Only because the provision shown in the order is Section 256, the impugned order cannot be treated as an order of acquittal. This is particularly so, since the order reveals that complaint was dismissed. However, considering the facts and Crl.A. NO. 1699/09 3 circumstances under which, the proceedings were terminated, I am of the view that appellant can be given liberty to seek appropriate relief, in accordance with law. Hence, this petition is dismissed, with liberty to the appellant to seek appropriate relief within one month from today. K.HEMA, JUDGE. tgs