IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 CRL.A.No. 2206 of 2004() ------------------------ C.C.NO. 1164/2000 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM. ................... APPELLANT: COMPLAINANT. -------------------------- K.A.CHELLAPPAN, KALLU VELIL HOUSE, MAVELLOOR P.O., ERNAKULAM DISTRICT. BY ADV. SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN RESPONDENT(S): ACCUSED. ----------------------- 1. SHAJI MADHAVAN, MALAMKOTIL HOUSE, MITTAYIKUNNAM P.O., THALAYOLAPARAMBU P.O., PIN - 686 605. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.P.V.VIJAYAKUMAR FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON 15/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 2206 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 1164 of 2000 on the file of the Chief Judicial Magistrate Court, Ernakulam against the order of acquittal under Section 256 Cr.P.C. dt. 13.8.2004. That was a case filed by the complainant against the first respondent for the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs. 25,000/- On 13.8.2004, the accused was acquitted under Section 256 Cr.P.C. as the complainant was not present either in person or by pleader. 2. Heard learned counsel for the appellant and the learned Public Prosecutor. 3. The learned counsel for the appellant submitted that the learned Chief Judicial Magistrate took cognizance of the offence on 23.6.2000 and the accused entered appearance through Crl.A. No. 2206 of 2004 2 counsel on 12.9.2001. The learned counsel for the appellant further submitted that on 29.5.2002 non-bailable warrant was issued against the accused as the accused failed to appear inspite of specific direction. The learned counsel for the appellant submitted that on 16.2.2004 Section 82, 83 Cr.P.C. steps were ordered against the accused and the case was posted for report to 26.7.2004 and thereafter to 13.8.2004. On 13.8.2004, the learned Chief Judicial Magistrate acquitted the accused under Section 256 Cr.P.C. due to the absence of the complainant and his counsel. The learned counsel submitted that the appellant/complainant could not be present before the Court on 13.8.2004 as he was laid up. 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 Crl.A. No. 2206 of 2004 3 of judicial discretion. The order should show the wide discretion that vested in the Court had properly been exercised. 5. Since the date was fixed for appearance of the accused and not for hearing, the acquittal of the accused for non-appearance of the complainant is manifest error of justice and as such not proper. Under the above circumstances it would be just and reasonable to set aside the order of acquittal. 6. In the result, this appeal is allowed. The order in C.C.No. 1164 of 2000 on the file of the Chief Judicial Magistrate, Ernakulam, dt. 13.8.2004 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 5.1.2011 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm