IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 CRL.A.No. 2530 of 2007 -------------------------------------- CC.91/1997 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... APPELLANT/COMPLAINANT: HARIPRASAD.M.P., MELUTTUPULITHITTA VEEDU, OMALLOOR P.O., PATHANAMTHITTA (SECRETARY OF THE OMALLOOR SERVICE CO-OPERATIVE BANK LTD.NO. Q 229, OMALLOOR). BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS/STATE AND ACCUSED: 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KOSHY THOMAS, PROPRIETOR, PUTHENKAVIL RUBBER STORES, CHANDANAPPALLY, CHANDANAPPALLY P.O., (PUTHENKAVIL VEEDU, CHANDANAPPALLAY P.O.). BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- Crl.A.No. 2530 of 2007 --------------------------- JUDGMENT Heard. It is submitted by the counsel for the appellant that the second respondent/accused had not entered appearance in the court below, despite issuance of summons and warrant. Hence notice to the second respondent is dispensed with. 2. The accused was being acquitted under Section 256(1) Cr.P.C., when he had not entered appearance at all, despite issuance of summons and warrant. In that circumstance, personal attendance of the appellant/complainant was not at all necessary, especially when, he was represented by a lawyer and an application also had been filed for the absence of the appellant. Personal attendance of the complainant was also not to help to have any progress being made in the case. Hence, proviso to Section 256(1) Cr.P.C. should have persuaded the learned Magistrate to dispense with the personal attendance of the complainant. Acquittal of the CRA 2530/07 2 accused under Section 256(1) Cr.P.C. by the impugned order is not sustainable, in the circumstances. Hence, allowing this appeal, I remand the case back to the Chief Judicial Magistrate's Court, Pathanamthitta. The Chief Judicial Magistrate shall proceed to dispose of the case afresh, according to law. The appellant shall appear for the case in the court below on 30.1.2008. 3rd January, 2008 (K.P.Balachandran, Judge) tkv