IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 CRL.A.No. 486 of 2002() ----------------------- CC.132/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... APPELLANT(S): PETITIONER/COMPLAINANT: ------------------------------------- HARIDASAN, S/O. PALAYIL SANKARAN, GURUVAYOOR AMSOM DESOM, CHAVAKKAD. BY ADV. SRI.RANJIT BABU RESPONDENT(S): RESPONDENT/ACCUSED: ---------------------------------- 1. SURESH, S/O. ITHIPARAMBIL AYYAPPAKUTTY, VENMENAD DESOM, PAVRATTY VILLAGE, CHAVAKKAD TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2010, THE COURT ON 06/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 486 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 132 of 1999 on the file of the Judicial First Class Magistrate Court, Chavakkad against the order of acquittal of the accused under Section 256(1) Cr.P.C. dt.6.4.2002. The first respondent herein was the accused in that case, which was filed by the complainant alleging commission of the offence punishable under Section 138 of the N.I. Act, involving a cheque for Rs.1,00,000/- On 6.4.2002, the learned Magistrate acquitted the accused under Section 256(1) Cr.P.C. due to the absence of the complainant. 2. Heard learned counsel for the appellant and the learned Public Prosecutor. 3. The learned counsel for the appellant/complainant submitted that the complainant was present before the court below on most of the previous posting dates and that the Crl.A. No. 486 of 2002 2 complainant could not be preset before the court below on 6.4.2002 only because he was suffering from high fever and he was advised to take bed rest by his doctor. The learned counsel further submitted that the court below ought to have adjourned the case to another date so that the complainant could have got the opportunity to adduce evidence. 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) 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. The proceedings paper of the court below show that the complainant was present before the court below on a number of posting dates. In the order under challenge it is mentioned that the Crl.A. No. 486 of 2002 3 case was posted on 6.4.2002 as a last chance for the complainant's evidence. But the proceedings paper does not show that the case was posted to that date for evidence as a last chance. Since the complainant was preset before the court below on a number of previous posting dates, I am of the view that the learned Magistrate is not justified in acquitting the accused under Section 256(1) Cr.P.C. for the absence of the complainant on 6.4.2002. Therefore, in the interest of justice that order has to be set aside. 6. In the result, this appeal is allowed. The order in C.C.No. 132 of 1999 on the file of the Judicial First Class Magistrate Court, Chavakkad acquitting the accused under Section 256(1) Cr.P.C. is set aside and that complaint is restored to file. The learned Magistrate is 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. Send back the records to the court below immediately. (M.L. JOSEPH FRANCIS) Judge tm