IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 CRL.A.No. 1964 of 2005() ------------------------------ CC.1333/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... APPELLANT(S):COMPLAINANT ----------------------------------- P.K.DINAN, S/O.KUMARAN, PARASSERY HOUSE, EDATHIRITHY, KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.P.R.SHAJI RESPONDENT(S):RESPONDENTS -------------------------------------- 1. MRS.LISSA JOY, W/O.JOY, PALATHINGAL HOUSE, EDATHIRUTHY P.O., EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.ANILKUMAR (KALLESSERIL) R2 BY PUBLIC PROSECUTOR SMT.ANEY PAUL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs M.C.HARI RANI, J * * * * * * * * * * * * Crl.A.No.1964 of 2005 ---------------------------------------- Dated this the 30th day of March 2011 O R D E R This appeal is filed by the complainant in C.C.No.1333 of 2002 on the file of the Judicial First Class Magistrate Court, Kodungalloor. The 1st respondent herein is the accused in that case which was filed by the complainant against the accused alleging commission of the offence under Section 138 of the Negotiable Instruments Act relating to dishonour of a cheque for Rs.35,000/- dated 22/10/2002. On 11/2/2005, the learned Judicial First Class Magistrate Court dismissed the complaint and acquitted the accused under Section 256(1) Cr.P.C due to the non-appearance of the complainant. Against that order, the complainant filed this appeal. 2. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. Heard the learned Public Prosecutor also. 3. The learned counsel for the appellant submitted that when the case was posted on 11/2/2005, the complainant could not be present before the court below due to dysentery and Crl.A.No.1964/05 2 vomiting. A petition has already been filed on behalf of the complainant as C.M.P.No.1413/2005 to excuse his absence. The learned Magistrate was not inclined to allow that petition and the order was passed acquitting the 1st respondent. 4. It is true that under Section 256(1) Cr.P.C, a Magistrate is competent to acquit the accused if the complainant is not present before court, when the case is called on for hearing. But the power of the Magistrate under Section 256(1) Cr.P.C is not to be exercised in a mechanical manner. In the case on hand, the accused was acquitted under Section 256(1) Crl.P.C in spite of the petition filed on behalf of the complainant to excuse his absence for the day due to the reason of illness that too dysentery and vomiting. The presence of the complainant cannot be compelled by the Magistrate when he was laid up and a petition has already been filed. 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 for the trial of the accused for the same offence. The order must show that the wide discretion vested in the court has been properly exercised. Crl.A.No.1964/05 3 5. Since the order under challenge was passed without considering the question that the absence of the complainant on that day was intentional or with mala fides, the order dismissing the complaint and acquitting the accused is to be set aside in the interest of substantial criminal justice. The learned counsel for the 1st respondent has also fairly submitted that a chance can be given to the complainant by remanding this case for disposal on merits. 6. Accordingly, this appeal is allowed. The order in C.C.No.1333 of 2002 on the file of the Judicial First Class Magistrate Court, Kodungalloor 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 in this case. 7. Send back the lower court records, if any, immediately. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.A.No.1964/05 4 Crl.A.No.1964/05 5 Crl.A.No.1964/05 6 Crl.A.No.1964/05 7 M.C.HARI RANI, J Crl.R.P.No.504 of 2001 ORDER 17th DAY OF JUNE 2001 Crl.A.No.1964/05 8