IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 CRL.A.No. 957 of 2003() ----------------------- CC.169/2000 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... APPELLAN/COMPLAINANT: --------------------------------------- T.K. SADANANDAN, S/O. APPUKUTTY, THAZHE KEEZHUMADATHIL HOUSE, P.O. KONOTT, VIA. KUNNAMANGALAM, KOZHIKODE DIST. BY ADV. SRI.JACOB ABRAHAM RESPONDENTS/R1: ---------------------------- 1. RAMAKRISHNAN T.K., S/O. PACHUKUTTY KIZHAVAN KIRATH, CHELAVOOR P.O. KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. PUZHAKKARA MUHAMMED THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2010, THE COURT ON 03/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 957 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 169 of 2000 on the file of the Judicial First Class Magistrate Court -V, Kozhikode against the order of acquittal of the first respondent herein under Section 256(1) Cr.P.C. dt.7.11.2002. 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.75,000/- On 7.11.2002, the learned Magistrate acquitted the accused under Section 256(1) Cr.P.C. due to the absence of the complainant and his counsel. 2. Heard learned counsel for the appellant and the learned Public Prosecutor. Crl.A. No. 957 of 2003 2 3. The learned counsel for the appellant/complainant submitted that on 29.11.2001 the complainant was present and non-bailable warrant was issued against the accused. Steps under Section 82 and 83 Cr.P.C. was ordered and the case was posted to 23.3.20002. On 23.3.2002, the complainant was present and steps under Sections 82 and 83 were effected and the case was posted to 11.7.2002. On 11.7.2002 the complainant was absent and he applied. Non-bailable warrant against the accused was ordered through the Superintendent of Police, Trcihur and the case was adjourned to 7.11.2002. On 7.11.2002, the complainant and his counsel were absent and the accused was acquitted under Section 256(1) Cr.P.C. The learned counsel for the appellant submitted that the complainant could not be present before the court below on 7.11.2002 due to his illness. 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) Crl.A. No. 957 of 2003 3 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. Since the presence of the complainant was not required on 7.11.2002 as non-bailable warrant was pending against the accused, the learned Magistrate is not justified in acquitting the accused for the absence of the complainant and his counsel. In the above circumstances, in the interest of justice that order of acquittal has to be set aside. 6. In the result, this appeal is allowed. The order of acquittal of the accused under Section 256 Cr.P.C. in C.C.No. 169 of 2000 on the file of the Judicial First Class Magistrate Court -V, Kozhikode is set aside and that complaint is restored to file. The learned Magistrate is Crl.A. No. 957 of 2003 4 directed to proceed with the case in accordance with law. The parties are directed to appear before that Court on 25.1.2011 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm