IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 CRL.A.No. 594 of 2002() ---------------------------- CC.624/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT(S): COMPLAINANT: ------------------------------------- B.T.SIRAJUDHEEN, S/O. HAMEED, AYIKKARA. BY ADVS. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): ACCUSED: --------------------------------- 1. M.K.ABDUL GAFOOR, S/O. KOCHUPARIYATH, CHERTHALA. 2. THE STATE OF KERALA, REPRESENTED BY ITS SPECIAL PROSECUTOR, HIGH COUR OF KERALA, ERNAKULAM. R1 BY ADV. SRI.M.MOHAMED NAVAZ R2 BY PUBLIC PROSECUTOR SMT.ANEY PAUL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs M.C.HARI RANI,J. * * * * * * * * * * * * * Crl.A.No.594 of 2002 ---------------------------------------- Dated this the 11th day of April 2011 J U D G M E N T This appeal is filed by the complainant in C.C.No.624/1998 on the file of J.F.C.M-II, Kannur. The 1st respondent herein is the accused in that case which was filed by the complainant against the accused alleging the commission of offence under Section 138 of the Negotiable Instruments Act. On 26/12/2001, the learned J.F.C.M-II, Kannur acquitted the accused under Section 256(1) Cr.P.C due to the non-appearance of the complainant/PW1 for cross-examination. Against that order, the complainant filed this appeal. 2. Heard the learned counsel for the appellant, the learned counsel for the 1st respondent and the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that after the chief examination of the appellant as PW1, the case was adjourned to several dates as per the request of the 1st respondent to settle the matter. The appellant/PW1 was present Crl.Appeal No.594/02 2 before the lower court on almost all the posting dates. He was present on 04/12/2001 and the case was adjourned to 26/12/2001 on the request of the 1st respondent. But the appellant could not be present on that date and the learned Magistrate acquitted the accused. Therefore, it is prayed to set aside the judgment dated 26/12/2001 in C.C.No.624/1998 on the file of J.F.C.M-II, Kannur and to remand this case with direction to dispose of the same, in accordance with law. The prayer made by the learned counsel for the appellant has not been opposed by the learned counsel for the 1st respondent. 4. It is revealed from the impugned order that the complainant was absent on 26/12/2001 and was applied; but it was rejected. At the same time, the accused was also absent and the learned Magistrate allowed the application and the accused was acquitted under Section 256(1) Cr.P.C for the simple reason of the absence of PW1 for cross-examination. 5. 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 to the trial of the accused for the same offence. Therefore, that order must show the wide discretion Crl.Appeal No.594/02 3 vested in that court has been properly exercised. In the present case, it is revealed from the submission made by the learned counsel for the appellant and also from the impugned order that the accused was acquitted under Section 256(1) Cr.P.C for the offence alleged against him under Section 138 of the Negotiable Instruments Act and for the reason of the absence of the complainant/PW1 for cross-examination and for a singular default in appearance on his part which is not proper and justifiable. Therefore, the order acquitting the accused under Section 256(1) Cr.P.C is to be set aside in the interest of substantial criminal justice. 6. Accordingly, this appeal is allowed. The impugned order in C.C.No.624/1998 on the file of J.F.C.M-II, Kannur acquitting the accused under Section 256(1) Cr.P.C is set aside and the complaint is restored to file and the learned J.F.C.M-II, Kannur is directed to proceed with the trial of the case, in accordance with law after giving sufficient opportunity to both parties to adduce further evidence, if any. Both parties, the complainant as well as the accused shall appear before that court. The learned Magistrate shall assure the presence of both Crl.Appeal No.594/02 4 parties on the next date of hearing by issuing formal notice after the receipt of copy of this judgment. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.Appeal No.594/02 5 Crl.Appeal No.594/02 6 M.C.HARI RANI, J. .No. of 200 ORDER/JUDGMENT 29/07/2009