IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 CRL.A.No. 1541 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.540/2004 Dated 13/09/2004 CC.21/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, TRIVANDRUM .................... APPELLANT/COMPLAINANT IN CC.21/2000 --------------------------------------- CIRIAC EAPEN, T.C.11/626, VALIYA VEEDU, NANDANCODE, KOWDIAR P.O., THIRUVANANTHAPURAM (EXPIRED ON 9-1-2001) SUNILA CYRIAC W/O. CYRIAC EAPEN, IMPLEADED AS THE LEGAL HEIR ON 9-7-2001. BY ADV. SRI.BLAZE K.JOSE RESPONDENT IN C.C.NO.21/2000 ------------------------------------- 1. SURESH NATH, T.C.4/1732/1, KINATTUVILAKATHU VEEDU, KOWDIAR P.O., THIRUVANANTHAPURAM-3. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.K.A.SREEJITH FOR R1 PUBLIC PROSECUTOR P.N.SUMANGALA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.C.HARI RANI,J. * * * * * * * * * * * * * Crl.A.No.1541 of 2004 ---------------------------------------- Dated this the 22nd day of February 2011 J U D G M E N T This appeal is filed by the complainant in C.C.No.21/2000 on the file of Judicial First Class Magistrate Court-I (Special Court for Mark List Cases), Thiruvananthapuram. The 1st respondent herein is the accused in that case which was filed by the complainant against the accused alleging commission of offence under Section 138 of the Negotiable Instruments Act relating to dishonour of a cheque for Rs.50,000/-. On 19/12/2002, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256(1) Cr.P.C due to the non-appearance of the complainant and for want of representation for the complainant. Against that order, the complainant has preferred this appeal. 2. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent. 3. The learned counsel for the appellant submitted that after the filing of the complaint, the complainant expired on 09/01/2001. His wife was impleaded as a legal heir on 09/07/2001. Thereafter the accused appeared and the case was Crl.Appeal No.1541/04 2 adjourned to 26/2/2002 for settlement. On 26/2/2002, there was no sitting and the case was adjourned to several dates i.e. 30/03/2002, 18/4/2002 and 16/08/2002. Subsequently the counsel, who was appearing for the complainant, met with an unnatural death on 01/09/2002. On 28/10/2002, the case was posted to 19/12/2002 for recording the plea of the accused. Due to the unnatural death of the counsel, the appellant was not intimated about the posting of the case on 19/12/2002. Therefore the complainant/appellant was not present and there was no representation for the complainant/appellant before the court below and the accused was acquitted under Section 256 (1) Cr.P.C. 4. An order under Section 256(1) Cr.P.C acquitting the accused is a final order of acquittal which operates as a bar under Section 300 Cr.P.C to the trial of the accused for the same offence. Therefore that order must show the wide discretion vested in that court has been properly exercised. 5. The order under challenge was passed without examining the question whether the presence of the complainant was necessary or not on that particular date. The absence of the complainant and the non-representation of the counsel for the Crl.Appeal No.1541/04 3 complainant on 19/12/2002 was due to the reason of the unnatural death of the complainant's counsel and lack of intimation to the complainant regarding the posting date of the case on 19/12/2002. Therefore, the order of acquitting the accused under Section 256(1) Cr.P.C passed by the learned Magistrate on 19/12/2002 is liable to be set aside in the interest of substantial criminal justice as submitted by the learned counsel for the appellant. 6. Accordingly, this appeal is allowed. The order in C.C.No.21/2000 dated 19/12/2002 on the file of the Judicial First Class Magistrate Court-I, Thiruvananthapuram acquitting the accused under Section 256(1) Cr.P.C is set aside and the complaint is restored to file and the learned Judicial First Class Magistrate-I, Thiruvananthapuram is directed to proceed with the trial of the case after issuance of formal notice to both parties of the next date of posting of the case to be fixed by the learned Magistrate in this case. Sent back the lower court records, if any, immediately. (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Crl.Appeal No.1541/04 4 Crl.Appeal No.1541/04 5 Crl.Appeal No.1541/04 6 M.C.HARI RANI, J. .No. of 200 ORDER/JUDGMENT 29/07/2009