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. 857 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.153/2004 Dated 27/02/2004 ST.138/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... APPELLANT(S): COMPLAINANT. -------------------------- D.K.MADHAVAN, AGED 65, S/O.RAMUNNY,LEKHALAYAM, CHALAD, KANNUR. BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN SRI.T.N.SURESH SRI.B.R.VIJAYAMOHAN SRI.K.B.SUJAI KUMAR SRI.T.V.JAYAKUMAR RESPONDENT(S): ACCUSED. ----------------------- 1. KANOTH PREMARAJAN, M/S.C.M.MUKUNDAN, WHOLE SALE GENERAL MERCHANT, CAMP BAZAR, KANNUR. 2. STATE OF KERALA, TO BE REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSOECUTOR 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. 857 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of December, 2010 JUDGMENT This appeal is filed by the complainant against the order of acquittal of the accused under Section 256 Cr.P.C. dt.29.12.2003 in S.T.C. No. 138 of 2003 on the file of the Judicial First Class Magistrate Court -I, Kannur. The first respondent herein was the accused in that case, which was filed against the accused alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.75,000/- On 29.12.2003, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256 Cr.P.C. on the ground that the complainant was absent. 2. Heard learned counsel for the appellant and the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that on 17.9.2003 the accused appeared before the court below and the 2 case was posted for evidence on 1.12.2003. On 1.12.2003 the complainant was present, but the accused remained absent and sought for one month's time for settlement. Accordingly the case was adjourned to 29.12.2003. The learned counsel for the appellant submitted that on that date the complainant was present, but his Advocate, Shri. T.R. Mohandas, was hospitalised at Kozhikode and he underwent a surgery to remove the kidney stone. Therefore the complainant directly filed a petition, C.M.P. No.5939 of 2003, before the court below to adjourn the case for two weeks. But the learned Magistrate dismissed the petition and acquitted the accused under Section 256(1) Cr.P.C. 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 3 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. On perusing the lower court records it is seen that the on 29.12.2003 the complainant was present before the court below and he filed C.M.P.No. 5939 of 2003 for adjournment of the case for two weeks as his counsel was hospitalised. Therefore the learned Magistrate is not justified in dismissing the complaint and acquitting the accused under Section 256 Cr.P.C. on the ground that the complainant was absent. Therefore, in the interest of justice that order has to be set aside. 6. Accordingly this appeal is allowed. The order in S.T.No. 138 of 2003 on the file of the Judicial First Class Magistrate - I, Kannur dt.29.12.2003 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 4 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