IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 CRL.A.No. 914 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.272/2004 Dated 06/04/2004 ST.393/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... APPELLANT/COMPLAINANT: ------------------------------------------ KERALA STATE CO-OPERATIVE BANK LTD., TRIVANDRUM, REP. BY THE BRANCH MANAGER, KANNUR BRANCH. BY ADV. SRI.C.K.SUDHEER RESPONDENT: ACCUED -------------------------------------- KANDIAN SUMA, D/O. SRI.K. BALAKRISHNAN, `FIELD VIEW', MARHODY, THIRUVANGAD, THALASSERY - 670 103. ADV. SRI.C.P.PEETHAMBARAN FOR R1 PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON 23/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 914 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of December, 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 393 of 2003 on the file of the Judicial First Class Magistrate Court -I, Kannur against the order of acquittal of the respondent herein under Section 256 Cr.P.C. dt.1.3.2004. The respondent herein was the accused in that case, which was filed by the Kannur branch Manager of the complainant bank alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.10,40,000/- On 1.3.2004, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256 Cr.P.C. on the ground that the complainant was absent without any sufficient reason. 2. Heard learned counsel for the appellant and the learned counsel for the respondent. 3. The learned counsel for the appellant submitted that on 1.3.2004 the appellant/complainant could not be present before Crl.A. No. 914 of 2004 2 the court below due to the audit inspection in the complainant bank and therefore his presence was necessary in the bank and the counsel for the complainant filed a petition to adjourn the case showing this fact. But the learned Magistrate dismissed the petition and acquitted the accused. 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 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. The lower court records show that the counsel for the complainant filed a petition on 1.3.2004 stating that the complainant could not be present before the court below due to audit inspection in Crl.A. No. 914 of 2004 3 his bank. On 1.3.2004 the accused was also absent and he also applied for adjournment. Since the complainant has shown sufficient cause for his non-appearance, the learned Magistrate is not justified in dismissing the complaint and acquitting the accused under Section 256 Cr.P.C. Therefore, in the interest of justice that order has to be set aside. 6. Accordingly this appeal is allowed. The order of acquittal in S.T.No. 393 of 2003 on the file of the Judicial First Class Magistrate - I, Kannur dt.1.3.2004 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 proceed with the case in accordance with law. The parties are directed to appear before that Court on 10.2.2011 for further proceedings. Send back the records to the court below immediately. (M.L. JOSEPH FRANCIS) Judge tm