IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 CRL.A.No. 3 of 2004() --------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.525/2003 Dated 14/11/2003 CC.212/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... APPELLANT: COMPLAINANT: -------------------------- M/S. SAPHIRE MARKETING, NEAR PAICO PRESS, P.B.NO.3255, NEWS STREET, REP. BY ITS PARTNER, NIZAM IBRAHIM, S/O. IBRAHIM, CHETTUKUDIYIL HOUSE, DESABHIMANI ROAD, KALOOR, KOCHI-17. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): ACCUSED/STATE: ----------------------------- 1. P.D. JOY, PURAKKADAN HOUSE, NEAR KUNNELPALLI CHURCH, ALANGAD P.O., ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ADV. SRI.T.A.SHAJI FOR R1 SMT.T.K.PRASEEDA FOR R1 R2 BY PUBLIC PROSECUTOR SHRI.P.R. JAYAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2010, THE COURT ON 22/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 3 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 212 of 1998 on the file of the Additional Chief Judicial Magistrate Court (EO), Ernakulam. That was a case filed by the complainant against the first respondent/accused alleging commission of the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs.15,510/- On 11.7.2003, the accused was acquitted under Section 256 Cr.P.C. on the ground that the complainant and his counsel were absent. 2. Heard learned counsel for the appellant and the learned counsel for the first respondent. 3. The learned counsel for the appellant submitted that in this case the complainant's evidence and the evidence of the accused were over and the case was posted to 11.7.2003. Crl.A. No. 3 of 2004 2 The learned counsel for the appellant submitted that on 11.7.2003 the accused was acquitted under Section 256 Cr.P.C. as the complainant and his counsel were absent. The learned counsel for the appellant submitted that the complainant could not be present in court in time due to traffic block. 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. In the preset case, since the complainant's evidence and defence evidence were over, the learned Addl. Chief Judicial Magistrate could have disposed of the case on merits. In prosecution Crl.A. No. 3 of 2004 3 under Section 138 of the N.I. Act, the presence of the complainant is not absolutely necessary after closing of the evidence. Since the Addl. Chief Judicial Magistrate acquitted the accused under Section 256 Cr.P.C. without examining the question whether the presence of the complainant was necessary or not, that order acquitting the accused should be set aside in the interest of substantial criminal justice. 6. In the result, this appeal is allowed. The order in C.C.No. 212 of 1998 on the file of the Addl. Chief Judicial Magistrate, (EC) Ernakulam acquitting the accused under Section 256 Cr.P.C. is set aside. The learned Addl. Chief Judicial Magistrate is directed to proceed with the case in accordance with law. The parties are 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