IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 CRL.A.No. 731 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.234/2004 Dated 01/04/2004 CC.123/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): COMPLAINANT ------------------------- SAJAIKUMAR S/O SARADAMMA, KURIYAKATTIL HOUSE, POOMANGALAM VILLAGE, EDAKULAM, MUKUNDAPURAM TALUK. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. T.V.VIJAYAN S/O. JANARDANA KURUP, THEKKEDATH KALARIKKAL HOUSE, EDAKULAM P.O., MUKUNDAPURAM TALUK. 2. STATE OF KERALA, REPRESENTED BY ITS DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.V.BINOY RAM FOR R1 R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON 21/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 731 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 123 of 2002 on the file of the Judicial First Class Magistrate Court, Irinjalakuda against the order of acquittal of the first respondent herein under Section 256 Cr.P.C. dt.12.1.2004. That was a case filed by the complainant against the first respondent herein alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.40,000/- On 12.1.2004, the accused was acquitted under Section 256 Cr.P.C. on the ground that the complainant and his counsel were absent. 2. Heard learned counsel for the appellant and the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that on 12.1.2004 the accused was also absent and he applied for time. Crl.A. No. 731 of 2004 2 The learned counsel for the appellant submitted that the complainant wa not able to appear on that day and that fact was intimated to the counsel for the complainant. But his counsel could not appear on that day as he was hospitalised due to Gastroenteritis. 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 proceedings paper of the court below shows that on 29.4.2002 the complainant was present and his sworn statement was taken and summons was issued to the accused to appear on 27.2.2003. On 27.2.2003 the complainant and his counsel were absent and they Crl.A. No. 731 of 2004 3 applied and the case was posted to 12.1.2004. On 5.5.2003 the case was taken in the Adalat and the accused was absent and the complainant was present. On 12.1.2004 the accused was absent and he applied and that petition was allowed. But the complainant was absent and there was no representation and therefore the accused was acquitted under Section 256 Cr.P.C. From the proceedings paper it is clear that the accused never appeared before the court below and on 12.1.2004 the case was posted for appearance of the accused and not for evidence and therefore the presence of the complainant was not necessary and as such the learned Magistrate is not justified in acquitting the accused. 6. In the result, this appeal is allowed. The order of acquittal in C.C.No. 123 of 2002 on the file of the Judicial First Class Magistrate Court, Irinjalakuda dt.12.1.2004 acquitting the accused under Section 256(1) 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 Crl.A. No. 731 of 2004 4 Court on 25.1.2011 for further proceedings. Send back the lower court records immediately. (M.L. JOSEPH FRANCIS) Judge tm