IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 CRL.A.No. 2175 of 2004() ------------------------ CC.684/2001 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM AGAINST THE JUDGEMENT/ORDER IN CRLP.811/2004 Dated 10/12/2004 .................... APPELLANT: COMPLAINANT: ------------------------------------------ SMT.MARY VARGHESE, H.NO.29/1760 A, THUNDIPARAMBIL HOUSE, BUND ROAD, THAIKOODAM. BY ADV. SRI.C.K.KARUNAKARAN SRI.C.E.UNNIKRISHNAN SRI.M.P.HARIKUMAR RESPONDENTS/ACCUSED & STATE: ---------------------------------------------------- 1. SHRI. BIJU. A.D., AKKARAVEETTIL, CHILAVANNOOR, KADAVANTHRA P.O., COCHIN-20. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. ADV. SRI.D.NARENDRANATH FOR R1 SRI.M.HARISHARMA FOR R1 R2 BY PUBLIC PROSECUTOR SHRI. MUHAMMED PUZHAKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON 02/12/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 2175 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 684 of 2001 on the file of the Addl. Chief Judicial Magistrate Court, Ernakulam against the order of acquittal of the first respondent herein under Section 256 Cr.P.C. dt.12.10.2004. That was a case filed by the complainant against the first respondent herein alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.40,000/- On 12.10.2004, the learned Addl. Chief Judicial Magistrate acquitted the accused under Section 256 Cr.P.C. due to the absence of the complainant and her counsel. 2. Heard learned counsel for the appellant and the learned counsel for the first respondent. 3. The learned counsel for the appellant/complainant submitted that the complainant was examined before the court Crl.A. No. 2175 of 2004 2 below on 23.7.2004 and the case was posted to 9.8.2004 for defence evidence. However, on 9.8.2004 the case was further adjourned to 28.9.2004 for defence evidence. The learned counsel further submitted that unfortunately due to an over sight the subsequent posting date was noted by the Advocate's Clerk as 28.10.2004 instead of 28.9.04. Therefore the complainant was under the impression that the case would be called only on 28.10.2004. When the case was called on 28.9.2004, there was no representation for the complainant and the case was adjourned to 12.10.2004. On 12.10.2004 the complainant could not appear before the Court below as the posting date was not known to her and therefore on 12.10.2004 the learned Addl. Chief Judicial Magistrate acquitted the accused under Section 256(1) Cr.P.C. due to the absence of the complainant and her counsel. 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) Crl.A. No. 2175 of 2004 3 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. Since the evidence of the complainant was over and the case was posted for defence evidence, the learned Magistrate ought not have acquitted the accused under Section 256 Cr.P.C. for the absence of the complainant and her counsel. In the above circumstances, 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. 684 of 2001 on the file of the Addl. Chief Judicial Magistrate Court, Ernakulam acquitting the accused under Section 256 Cr.P.C. is set aside and that complaint is restored to file. The learned Addl. Chief Judicial Magistrate is directed to proceed with the case in accordance Crl.A. No. 2175 of 2004 4 with law. The parties are directed to appear before that Court on 21.1.2011 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm