IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 CRL.A.No. 1130 of 2004() ------------------------ ST.174/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANT: COMPLAINANT ------------------------- AZIZ P.S., PALLATHUPARAMBIL HOUSE, MUTHALAKKODAM P.O., SASTHAMPARA, THODUPUZHA. BY ADV. SRI.N.A.MURALEEDHARAN RESPONDENTS: ACCUSED & STATE ------------------------------ 1. PIOUS PAUL, PEDIKKATTUKUNNEL HOUSE, KADALIKKADU P.O., THEKKUMALA. 2. STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.MOHAN IDICULLA ABRAHAM FOR R1 SRI.MARTIN D.ALUMKARA FOR R1 SRI.REJI PAUL (THEKKEKUNNEL) FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. P.R. JAYAKRISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON 22/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1130 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ..th day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 174 of 2002 on the file of the Chief Judicial Magistrate Court, Thodupuzha against the judgment of acquittal of the first respondent herein under Section 256 Cr.P.C. dt.1.11.2002. That was a case filed by the complainant against the first respondent/ accused alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.40,000/- On 1.11.2002, the accused was acquitted under Section 256 Cr.P.C. as the complainant and his counsel were absent. 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 complaint was filed by the complainant before the Chief Judicial Crl.A. No. 1130 of 2004 2 Magistrate Court, Thodupuzha on 19.8.2002 and the case was posted for sworn statement of the complainant on 26.8.2002. On that day, the sworn statement of the complainant was taken and the case was numbered as S.T. 174 of 2002 and summons was issued to the accused and the case was posted to 1.11.2002. The learned counsel for the appellant submitted that on 1.11.2002 the accused was not present, but the learned Chief Judicial Magistrate acquitted the accused under Section 256 Cr.P.C. as the complainant and his counsel were absent. The learned counsel for the appellant submitted that the complainant could not be present in Court on that day as he could not reach the court in time. 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 of Criminal Crl.A. No. 1130 of 2004 3 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. In this case, even if the complainant had been present in Court on 1.11.2002, the learned Chief Judicial Magistrate could not have proceeded with the case. Since the presence of the complainant on that day was quite unnecessary, the learned Chief Judicial Magistrate is not justified in acquitting the accused under Section 256 Cr.P.C. In the above circumstances it would be just and reasonable that the order of the learned Chief Judicial Magistrate acquitting the accused under Section 256 Cr.P.C. should be set aside. 6. In the result, this appeal is allowed. The order in S.T.No. 174 of 2002 on the file of the Chief Judicial Magistrate, Thodupuzha 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 Crl.A. No. 1130 of 2004 4 proceed with the case in accordance with law. The parties are directed to appear before that Court on 14.1.2011 for further proceedings. Send back the records to the court below immediately. (M.L. JOSEPH FRANCIS) Judge tm