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. 680 of 2004() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.95/2004 Dated 09/02/2004 CC.804/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THODUPUZHA .................... APPELLANT(S): COMPLAINANT ------------------------- SATHEESH P.CHANDRAN, AGED 26 YEARS, S/O.CHANDRASEKHARAN, POOVATHINGAL HOUSE, KANJAR, THODUPUZHA. BY ADV. SRI.K.K.CHANDRAN PILLAI RESPONDENTS: ACCUSED ---------------------- 1. JOHNY THOMAS, PRANAMKAYATHU HOUSE, ARAKKULAM, THODUPUZHA, WORKING AS PEON, ST.JOSEPH COLLEGE, MOOLAMATTOM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 SRI.A.RASHID FOR R1 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. 680 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of November, 2010 JUDGMENT This appeal is filed by the complainant in C.C. No. 804 of 2000 on the file of the Judicial First Class Magistrate Court - II, Thodupuzha. 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. 65,000/- On 18.8.2003, the accused was acquitted under Section 256(1) Cr.P.C. as the complainant was not present in person even after no further time. 2. Heard learned counsel for the appellant and the learned counsel for the first respondent. 3. The learned counsel for the appellant submitted that when the case was posted for evidence on 18.8.2003, complainant could not be present before the court below as he Crl.A. No. 680 of 2004 2 was laid up due to illness and the complainant filed an application for adjournment through his counsel, which was rejected by the learned Magistrate. t 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 filed an application for adjournment through his counsel due to his illness, the acquittal of the accused for non-appearance of the complainant is not proper. Under the above circumstances it would be just and reasonable to set aside the order of acquittal. Crl.A. No. 680 of 2004 3 5. Accordingly this appeal is allowed. The order in C.C.No. 804 of 2000 on the file of the Judicial First Class Magistrate -II, Thodupuzha acquitting the accused under Section 256(1) Cr.P.C. is set aside. The learned Magistrate is directed to proceed with the trial of the case in accordance with law. Both parties are directed to appear before that Court on 21.12.2010 for further proceedings. (M.L. JOSEPH FRANCIS) Judge tm