IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 CRL.A.No. 1663 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.560/2004 Dated 20/09/2004 ST.92/2001 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... APPELLANT//COMPLAINANT: ------------------------------ M/S. AMSONS HOUSE, 201, ZAINA BUILDING, WEST HILL P.O., KOZHIKODE, REP. BY ITS P.A.HOLDER SRI.P.VHARIHARA KUMAR, S/O. P.V.VISWANATHAN. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/ACCUSED AND STATE : ------------------------------------------ 1. M.NARAYANAN, PROPRIETOR, M/S. MAY FAIR ENTERPRISES, MALLAKARA, PILICODE, KASARAGODE. 2. STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C.HARI RANI,J. * * * * * * * * * * * * * Crl.A.No.1663 of 2004 ---------------------------------------- Dated this the 23rd day of February 2011 J U D G M E N T This appeal is filed by the complainant in S.T.No.92/01 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode. The 1st respondent herein is the accused in that case which was filed by the complainant/appellant against the 1st respondent/accused alleging the commission of offence under section 138 of the Negotiable Instruments Act relating to dishonour of a cheque. On 10/6/2004, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256(1) Cr.P.C. due to the non-appearance of the complainant. Against that order, the complainant filed this appeal. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. No appearance was made by the 1st respondent though notice has been served to him personally in this appeal. 3. The learned counsel for the appellant submitted that after the appearance of the 1st respondent/accused before the Crl.Appeal No.1663/04 2 trial court on 15/9/2001, the case was adjourned from time to time and on 28/4/2004, the matter was referred to Lok Adalath. The accused did not appear and the matter could not be settled in the Lok Adalath and the case was sent back to the trial court. On 10/6/2004, the complainant could not be present before the trial court since he was laid up. The learned counsel for the complainant prayed for adjournment and also filed a petition to excuse the absence of the complainant. But the learned Magistrate rejected the prayer and acquitted the accused under Section 256(1) Cr.P.C. 4. Thus, according to the learned counsel for the complainant, he was prosecuting the case against the 1st respondent with bona fides and the non-appearance of the complainant before the trial court on that day when the case was posted for evidence was beyond his control as the complainant was laid up. Of course, it is mentioned in the impugned order that no medical certificate has been produced by the complainant to prove that he was laid up on that specific date when the case was posted for evidence. 5. An order under Section 256(1) Cr.P.C acquitting the accused is a final order of acquittal which operates as a bar Crl.Appeal No.1663/04 3 under Section 300 Cr.P.C to the trial of the accused for the same offence. Therefore, that order must show the wide discretion vested in that court has been properly exercised. Since the order under challenge was passed without examining the question whether there was sufficient reason for the complainant for his absence on that date as represented by the counsel appearing for the complainant and as mentioned in the petition filed by him for condoning his absence etc. Hence the order dismissing the complaint and acquitting the accused under Section 256(1) Cr.P.C is liable to be set aside in the interest of substantial criminal justice. 6. Accordingly, this appeal is allowed. The order in S.T.No.92/01 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode acquitting the accused under Section 256(1) Cr.P.C is set aside and the complaint is restored to file and the learned Magistrate is directed to proceed with the trial of the case after issuance of formal notice to both parties of the next date to be fixed by the learned Magistrate in the case. Send back the lower court records, if any, immediately. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.Appeal No.1663/04 4 Crl.Appeal No.1663/04 5 Crl.Appeal No.1663/04 6 M.C.HARI RANI, J. .No. of 200 ORDER/JUDGMENT 29/07/2009