IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2206 of 2004()
1. K.A.CHELLAPPAN, KALLU VELIL HOUSE,
... Petitioner
Vs
1. SHAJI MADHAVAN, MALAMKOTIL HOUSE,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.M.K.DILEEPAN
For Respondent :SRI.P.V.VIJAYAKUMAR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :15/11/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 2206 of 2004
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Dated this the 15th day of November, 2010
JUDGMENT
This appeal is filed by the complainant in C.C.No. 1164 of
2000 on the file of the Chief Judicial Magistrate Court,
Ernakulam against the order of acquittal under Section 256
Cr.P.C. dt. 13.8.2004. 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. 25,000/-
On 13.8.2004, the accused was acquitted under Section 256
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
learned Chief Judicial Magistrate took cognizance of the offence
on 23.6.2000 and the accused entered appearance through
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counsel on 12.9.2001. The learned counsel for the appellant further
submitted that on 29.5.2002 non-bailable warrant was issued against
the accused as the accused failed to appear inspite of specific direction.
The learned counsel for the appellant submitted that on 16.2.2004
Section 82, 83 Cr.P.C. steps were ordered against the accused and the
case was posted for report to 26.7.2004 and thereafter to 13.8.2004.
On 13.8.2004, the learned Chief Judicial Magistrate acquitted the
accused under Section 256 Cr.P.C. due to the absence of the
complainant and his counsel. The learned counsel submitted that the
appellant/complainant could not be present before the Court on
13.8.2004 as he was laid up.
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
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of judicial discretion. The order should show the wide discretion that
vested in the Court had properly been exercised.
5. Since the date was fixed for appearance of the accused and
not for hearing, the acquittal of the accused for non-appearance of the
complainant is manifest error of justice and as such not proper.
Under the above circumstances it would be just and reasonable to set
aside the order of acquittal.
6. In the result, this appeal is allowed. The order in C.C.No.
1164 of 2000 on the file of the Chief Judicial Magistrate, Ernakulam,
dt. 13.8.2004 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 5.1.2011 for further
proceedings.
(M.L. JOSEPH FRANCIS)
Judge
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