IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 CRL.A.No. 1193 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.373/2004 Dated 28/06/2004 CC.3247/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... APPELLANT: -------------- T.R. PRASAD, THONDANAL HOUSE, ARAKUZHA, MUVATTUPUZHA. BY ADV. SRI.T.RAJESH RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.T. GEORGE, JOY BROTHERS CINE PHOTO STORES, MADAPARAMBIL COMPLEX, MUVATTUPUZHA. ADV. SRI.M.R.SABU FOR R2 R1 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON 24/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1193 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 3247 of 2003 on the file of the Judicial First Class Magistrate - I, Muvattupuzha, against the order of acquittal of the second respondent herein for the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.50,000/- On 29.3.2004 the complainant and his counsel were absent and the accused was acquitted under Section 256 Cr.P.C. 2. The learned counsel for the appellant and the learned counsel for the second respondent are continuously absent even after the posting of the case on several occasions. Heard learned Public Prosecutor and perused the records. 3. In the appeal memorandum it is stated that the complaint was filed before the court below on 11.11.2003. The complaint Crl.A. No. 1193 of 2004 2 was taken on file on 13.11.2003 and it was adjourned to 29.3.2004. In the appeal memorandum it is further stated that the complainant and his counsel could not be present in the court below on 29.3.2004 as the posting date was mistakenly noted in the office diary of the complainant's counsel as 29.4.2004. 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 26of 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. For the absence of the complainant on one occasion, the learned Magistrate ought not have acquitted the accused under Section 256 Cr.P.C. in the interests of substantial criminal justice. In the Crl.A. No. 1193 of 2004 3 above circumstances it would be just and reasonable to set aside the order of acquittal and restore the complaint to file. 6. In the result, this appeal is allowed. The order in C.C.3247 of 2003 on the file of the Judicial First Class Magistrate - I, Muvattupuzha dt.29.3.2004 acquitting the accused under Section 256 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 complainant is directed to appear before that Court on 14.1.2011 for further proceedings. Send back the records to the court below immediately. (M.L. JOSEPH FRANCIS) Judge tm