IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 486 of 2002()
1. HARIDASAN, S/O. PALAYIL SANKARAN,
... Petitioner
Vs
1. SURESH, S/O. ITHIPARAMBIL AYYAPPAKUTTY,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.RANJIT BABU
For Respondent : No Appearance
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :06/12/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 486 of 2002
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Dated this the 6th day of December, 2010
JUDGMENT
This appeal is filed by the complainant in C.C. No. 132 of
1999 on the file of the Judicial First Class Magistrate Court,
Chavakkad against the order of acquittal of the accused under
Section 256(1) Cr.P.C. dt.6.4.2002. The first respondent herein
was the accused in that case, which was filed by the
complainant alleging commission of the offence punishable
under Section 138 of the N.I. Act, involving a cheque for
Rs.1,00,000/- On 6.4.2002, the learned Magistrate acquitted
the accused under Section 256(1) Cr.P.C. due to the absence of
the complainant.
2. Heard learned counsel for the appellant and the learned
Public Prosecutor.
3. The learned counsel for the appellant/complainant
submitted that the complainant was present before the court
below on most of the previous posting dates and that the
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complainant could not be preset before the court below on 6.4.2002
only because he was suffering from high fever and he was advised to
take bed rest by his doctor. The learned counsel further submitted
that the court below ought to have adjourned the case to another date
so that the complainant could have got the opportunity to adduce
evidence.
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
of judicial discretion. The order should show the wide discretion that
vested in the Court had properly been exercised.
5. The proceedings paper of the court below show that the
complainant was present before the court below on a number of
posting dates. In the order under challenge it is mentioned that the
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case was posted on 6.4.2002 as a last chance for the complainant’s
evidence. But the proceedings paper does not show that the case was
posted to that date for evidence as a last chance. Since the
complainant was preset before the court below on a number of
previous posting dates, I am of the view that the learned Magistrate is
not justified in acquitting the accused under Section 256(1) Cr.P.C.
for the absence of the complainant on 6.4.2002. Therefore, in the
interest of justice that order has to be set aside.
6. In the result, this appeal is allowed. The order in C.C.No.
132 of 1999 on the file of the Judicial First Class Magistrate Court,
Chavakkad 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 25.1.2011 for further
proceedings. Send back the records to the court below immediately.
(M.L. JOSEPH FRANCIS)
Judge
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