IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 CRL.A.No. 304 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.68/2004 Dated 23/01/2004 ST.285/2000 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... APPELLANT(S): COMPLAINANT IN ST NO.285 OF 2001 ---------------------------------------------- JAYANANDAN S., S/O. SANKARAN, SANKAR NIVAS, THAREKKAD GRAMAM, PALAKKAD. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): ACCUSED NO.1 & 2 IN ST NO.285 OF 2000 & STATE ------------------------------------------------------------ 1. MRS.SUSAN JIMMY, W/O. JIMMY ELIAS, MANAGING PARTNER, M/S.PATTASSERIL CEMENT MARKETING PATTASSERIL HOUSE, NEAR BOYS HIGH SCHOOL, THRIPUNITHURA. 2. M/S.PATTASSERIL CEMENT MARKETING, PATTASSERIL HOUSE, NEAR BOYS HIGH SCHOOL, THRIPUNITHURA. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R3 BY PUBLIC PROSECUTORSHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 304 of 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the ........ day of November, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 285 of 2000 on the file of the Chief Judicial Magistrate Court, Palakkad against the order of acquittal of the accused under Section 256(1) Cr.P.C. dt. 16.10.2003. Respondents 1 and 2 herein are accused 1 and 2 in that case, which was filed by the complainant alleging commission of the offence under Section 138 of the N.I. Act involving a cheque for Rs. 1 lakhs. 2. The learned counsel for the appellant submitted that when the case was posted for trial on 16.10.2003, the appellant/complainant could not be present in court as he was laid up and the counsel for the complainant filed a petition for excusing the absence of the complainant. The learned Chief Crl.A.No. 304 of 2004 2 Judicial Magistrate dismissed that petition and the accused were acquitted under Section 256(1) Cr.P.C. 3. Under Section 256 Cr.P.C, when the complainant is absent, the Court can proceed in either of the three ways: (i) it may acquit the accused or (ii) adjourn the case or (iii) proceed to hear the case under the proviso if the complainant is represented by an advocate or by the officer conducting the prosecution or if the personal attendance of the complainant is not considered necessary. 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. Each case has to be examined in its own context to determine as to whether there has been proper exercise of the discretion vested in the Court. 4. Since the complainant filed an application for adjournment on the ground of illness, the acquittal of the accused under Section 256(1) Cr.P.C. is improper and that order has to be set aside in the interests of justice. Crl.A.No. 304 of 2004 3 5. Accordingly this appeal is allowed and the order of acquittal under Section 256(1) Cr.P.C. in S.T.No. 285 of 2000 on the file of the Chief Judicial Magistrate Court, Palakkad is set aside and the learned Chief Judicial Magistrate is directed to proceed with the trial of the case in accordance with law. Both parties are directed to appear before the concerned Court on 15.12.2010 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm