IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1672 of 2005(B)
1. SURESHAN, S/O.APPUTTY,
... Petitioner
Vs
1. A.ABDUL KARIM, THASLI COTTAGE,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.AVM.SALAHUDIN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :23/11/2010
O R D E R
M.L. JOSEPH FRANCIS, J.
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Crl.A. No. 1672 of 2005
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Dated this the ..th day of November, 2010
JUDGMENT
This appeal is filed by the complainant in S.T. No. 2560 of
2001 on the file of the Judicial First Class Magistrate Court -V,
Kozhikode against the order of acquittal of the first respondent
herein under Section 256 Cr.P.C. dt.3.11.2003. That was a case
filed by the complainant against the first respondent herein
alleging commission of the offence punishable under Section
138 of the N.I. Act involving a cheque for Rs.30,000/- On
3.11.2003, the accused was acquitted under Section 256 Cr.P.C.
as 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 the
appellant/complainant could not be present before the court
below on 3.11.2003 as he was laid up with fever and body pain
Crl.A. No. 1672 of 2005
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and the complainant was present in Court on all other hearing dates and
there was no wilful laches or negligence on his part.
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 26of
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. Since the complainant was present on all other occasions, the
learned Magistrate is not justified in acquitting the accused under
Section 256 Cr.P.C. for the absence of the complainant on one
occasion. The learned Magistrate has not recorded the reason as to
why he does not deem it appropriate to adjourn the hearing of the case.
Crl.A. No. 1672 of 2005
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In the above circumstances it would be just and reasonable to set
aside the order of acquittal and restore the complaint to file.
6. In the result, this appeal is allowed. The order of acquittal in
S.T.No. 2560 of 2001 on the file of the Judicial First Class Magistrate
– V, Kozhikode dt.3.11.2003 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 are directed to appear before that Court on 14.1.2011 for
further proceedings.
(M.L. JOSEPH FRANCIS)
Judge
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