IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 857 of 2004()
1. D.K.MADHAVAN, AGED 65,
... Petitioner
Vs
1. KANOTH PREMARAJAN, M/S.C.M.MUKUNDAN,
... Respondent
2. STATE OF KERALA, TO BE REP. BY THE
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :23/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 857 of 2004
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Dated this the 23rd day of December, 2010
JUDGMENT
This appeal is filed by the complainant against the order of
acquittal of the accused under Section 256 Cr.P.C. dt.29.12.2003
in S.T.C. No. 138 of 2003 on the file of the Judicial First Class
Magistrate Court -I, Kannur. The first respondent herein was
the accused in that case, which was filed against the accused
alleging commission of the offence punishable under Section
138 of the N.I. Act involving a cheque for Rs.75,000/- On
29.12.2003, the learned Magistrate dismissed the complaint and
acquitted the accused under Section 256 Cr.P.C. on the ground
that the complainant was absent.
2. Heard learned counsel for the appellant and the learned
Public Prosecutor.
3. The learned counsel for the appellant submitted that on
17.9.2003 the accused appeared before the court below and the
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case was posted for evidence on 1.12.2003. On 1.12.2003 the
complainant was present, but the accused remained absent and sought
for one month’s time for settlement. Accordingly the case was
adjourned to 29.12.2003. The learned counsel for the appellant
submitted that on that date the complainant was present, but his
Advocate, Shri. T.R. Mohandas, was hospitalised at Kozhikode and he
underwent a surgery to remove the kidney stone. Therefore the
complainant directly filed a petition, C.M.P. No.5939 of 2003, before
the court below to adjourn the case for two weeks. But the learned
Magistrate dismissed the petition and acquitted the accused under
Section 256(1) Cr.P.C.
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
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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. On perusing the lower court records it is seen that the on
29.12.2003 the complainant was present before the court below and
he filed C.M.P.No. 5939 of 2003 for adjournment of the case for two
weeks as his counsel was hospitalised. Therefore the learned
Magistrate is not justified in dismissing the complaint and acquitting
the accused under Section 256 Cr.P.C. on the ground that the
complainant was absent. Therefore, in the interest of justice that
order has to be set aside.
6. Accordingly this appeal is allowed. The order in S.T.No. 138
of 2003 on the file of the Judicial First Class Magistrate – I, Kannur
dt.29.12.2003 acquitting the accused under Section 256 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
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are directed to appear before that Court on 10.2.2011 for further
proceedings. Send back the records to the court below immediately.
(M.L. JOSEPH FRANCIS)
Judge
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