IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 CRL.A.No. 740 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.277/2004 Dated 07/04/2004 CC.1526/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... APPELLANT: COMPLAINANT ------------------------- V.K.HASSAN & SONS, REP.BY POWER OF ATTORNEY HOLDER, K.U.NAZAR, ACCOUNTANT, BAZAR ROAD, MATTANCHERRY. BY ADV. SRI.P.T.JOSE RESPONDENT(S): ACCUSED ---------------------- 1. A.M.SADIQ, PROPRIETOR, STAR TRADING CO. NOW RESIDING AT STAR COTTAGE ST.ALBERTS LENE, KOCHI-35. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.T.O.XAVIER FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON 15/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 740 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 1526 of 2001 on the file of the Judicial First Class Magistrate - II, Kochi against the order of acquittal under Section 256 Cr.P.C. dt.16.3.2004. That was a case filed by the complainant against the first respondent for the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs. 24,501/- On 16.3.2004, the accused was acquitted under Section 256 Cr.P.C. as the complainant was absent. 2. Heard learned counsel for the appellant and the learned counsel for the first respondent. 3. The learned counsel for the appellant submitted that on 16.3.2004 the complainant was actually present in court, but he could not enter into the court hall due to heavy rush. Crl.A. No. 740 of 2004 2 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 order under challenge shows that the complainant was present in court on 23.1.2004 for giving evidence. As the party submitted that the matter is likely to be settled, an adjournment was given and the complainant was directed to be present for giving evidence. Since the complainant was present on several occasions and was ready to give evidence, the learned Magistrate ought not have acquitted the accused due to the absence of the complainant on a particular day. In the above circumstances it would be just and Crl.A. No. 740 of 2004 3 reasonable to set aside the order of acquittal and to restore the complaint to file. 6. In the result, this appeal is allowed. The order in C.C.No. 1526 of 2001 on the file of the Judicial First Class Magistrate -II, Kochi dt. 16.3.2004 dismissing the complaint and 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 Court on 5.1.2011 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm