IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 CRL.A.No. 1784 of 2004() ------------------------ CC.1365/2003 of THE J.F.C.M. COURT, KOTHAMANGALAM AGAINST THE JUDGEMENT/ORDER IN CRLP.547/2004 Dated 13/09/2004 .................... APPELLANT: COMPLAINANT: -------------------------- V.K.GOPINATHAN NAIR, S/O.KUMARAN NAIR, KOCHUVEETTIL VEEDU, THRIKKARIYOOR P.O., THRIKKARIYOOR, KOTHAMANGALAM. BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENTS: ACCUSED & STATE: ------------------------------- 1. T.R.BALAKRISHNAN, S/O. RAMAN, THUMBAYIL VEEDU, ARAKKUZHA P.O., MUVATTUPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SHRI. SABU SREEDHARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON 12/11/2010 DELIVERED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1784 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C.No. 1365 of 2003 on the file of the Judicial First Class Magistrate Court, Kothamangalam against the order of acquittal dt. 21.2.2004. 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. 2 lakhs. On 21.2.2004, the accused was acquitted under Section 256(1) 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 complainant was present on several posting dates after the posting of the case for evidence. The learned counsel for the Crl.A. No. 1784 of 2004 2 appellant submitted that the complainant and his counsel noticed the posting date as 29.2.2004 instead of 21.2.2004. The learned counsel submitted that the accused was also absent on 21.2.2004. 3. 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. 4. Since the complainant had been present on several posting dates, the acquittal of the accused for non-appearance of the complainant on one date is not proper. Under the above circumstances it would be just and reasonable to set aside the order of acquittal. Crl.A. No. 1784 of 2004 3 7. Accordingly this appeal is allowed. The order in C.C.No. 1365 of 2003 on the file of the Judicial First Class Magistrate , Kothamangalam dt. 21.2.2004 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 21.12.2010 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm