IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 CRL.A.No. 1698 of 2005() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.117/2005 ST.2935/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT(S): COMPLAINANT ------------------------- C.C.SIJEESH, S/O.CHANDRAN, CHAKALAPARAMBIL HOUSE, MUNDOOR DESOM, THRISSUR. BY ADV. SRI.C.A.CHACKO RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. SHEENA BILGIN, W/O. BILGIN FRANCIS, KUTHOOR HOUSE, P.O.PERUVALLOOR, POOCHAKUNNU. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR, SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8/11/2010, THE COURT ON 11/11/2010 DELIVERED THE FOLLOWING: M. L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No: 1698 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of November 2010 JUDGMENT This appeal is filed by the complainant in S.T. No. 2935 of 2003 on the file of Judicial First Class Magistrate Court – I, Thrissur against the order of acquittal under Section 256 (1) of Cr.P.C. The first respondent herein is the accused in that case, which was filed by the complainant against the accused alleging commission of offence under Section 138 of N.I. Act involving a cheque for Rs.9,792/-. On 22.12.2004 the learned Magistrate acquitted the accused under Section 256(i) of Cr.P.C. due to the absence of the complainant and his counsel. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Learned counsel for the appellant submitted that in spite of the repeated summons, the accused did not turn up and the learned Crl. Appeal No: 1698 of 2005 :2: Magistrate issued warrant against the accused and the case was posted to 22.12.2004 for return of warrant. The learned counsel for the appellant further submitted that on 22.12.2004 when the case was called, the complaint and his counsel were present and the accused was absent. Learned counsel for the appellant further submitted that the learned Magistrate failed to note the presence of the complainant and the accused was acquitted under Section 256(i) of Cr.P.C. for the reason that the complainant not being present either in person or by pleader. 4. Under Section 256, Cr.P.C., when the complainant is absent, the Court can proceed in either of the three ways: (i) it may acquit the accused or (ii) adjourn the case or (iii) proceed to hear the case under the proviso if the complainant is represented by an advocate or by the officer conducting the prosecution or if the personal attendance of the complainant is not considered necessary. 5. In this case, even if the complainant had been present on 22.12.2004, the learned Magistrate could not have proceeded with Crl. Appeal No: 1698 of 2005 :3: the trial as warrant against the accused was not executed. Therefore, the termination of proceedings by the learned Magistrate by resorting to Section 256 Cr.P.C. was not proper. Under the circumstances, it would be just and reasonable that the order of the learned Magistrate acquitting the accused should be set aside. 6. In the result, this appeal is allowed and the order on S.T. No. 2935 of 2003 on the file of Judicial First Class Magistrate Court – I, Trichur acquitting the accused under Section 256(1) Cr.P.C. is set aside and the learned Magistrate is directed to proceed with the case in accordance with law. The complainant and accused are directed to present before the concerned Magistrate Court on 15.12.2010 for further proceedings. M. L. JOSEPH FRANCIS ( Judge) dl/