IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 CRL.A.No. 156 of 2003() -------------------------------------- CC.858/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT(S): COMPLAINANT ------------------------- BENJAMIN, BEENA BHAVAN, THEKKUMPURAM PUTHOOR P.O. BY ADV. MR.JOSY ANTONY RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. L.VASANTHI, PUTHENVEETTIL VADAKKATHYIL, PALLICKAL P.O., KOTTARAKKARA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. MR.RAJESH NAIR, MR.SYAM SUNDER. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. --------------------------- CRL.A.NO.156 OF 2003 ------------------------------ Dated this the 13th day of August, 2009 JUDGMENT This is an appeal preferred against the order of acquittal under Section 256(1) of the Cr.P.C in a 138 N.I.Act case. From the proceeding paper produced, it can be seen that the matter had reached the stage of questioning under Section 313 of the Cr.P.C. Thereafter on 4.10.2002 the accused was present and an application for settlement was filed. The complainant was absent and an application was made for the same, but it was rejected and thereafter on the ground that the complainant was absent, the court acquitted the accused. The proceeding paper dated 3.10.2002 would reveal that the matter was posted for 313 questioning. 2. I do not think the presence of the complainant is necessary for a court of law for questioning the accused under Section 313 of the Cr.P.C. Actually, it was the accused who moved an application for settlement. I think, the court should have been a little more realistic and should have CRL.A.NO.156 OF 2003 2 given an opportunity and disposed of the matter in accordance with law. 3. Therefore, the order of acquittal passed under Section 256(1) of the Cr.P.C is set aside and the learned Magistrate is directed to restore the case back to file and dispose it of in accordance with law after questioning the accused under Section 313 of the Cr.P.C. If the parties want to settle the matter nothing stands in the way as compounding is permissible under Section 147 of the N.I.Act. The parties are directed to appear before the court below on 29.9.2009. In case the accused does not appear, the complainant shall take steps to get the presence of the accused before the court. M.N. KRISHNAN, JUDGE cl 3 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.156 OF 2003 ------------------------------ 13th day of August, 2009 JUDGMENT