V.K.Gopinathan Nair vs T.R.Balakrishnan on 12 November, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1784 of 2004()


1. V.K.GOPINATHAN NAIR, S/O.KUMARAN NAIR,
                      ...  Petitioner

                        Vs



1. T.R.BALAKRISHNAN, S/O. RAMAN,
                       ...       Respondent

2. STATE OF KERALA,

                For Petitioner  :SRI.C.C.THOMAS (SR.)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :12/11/2010

 O R D E R
                  M.L. JOSEPH FRANCIS, J.
              - - - - - - - - - - - - - - - - - - - - - - - - - -
                     Crl.A. No. 1784 of 2004
              - - - - - - - - - - - - - - - - - - - - - - - - - -
          Dated this the 12th day of November, 2010

                             JUDGMENT

This appeal is filed by the complainant in C.C.No. 1365 of

2003 on the file of the Judicial First Class Magistrate Court,

Kothamangalam against the order of acquittal dt. 21.2.2004.

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. 2 lakhs. On 21.2.2004, the

accused was acquitted under Section 256(1) 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

complainant was present on several posting dates after the

posting of the case for evidence. The learned counsel for the

Crl.A. No. 1784 of 2004

2

appellant submitted that the complainant and his counsel noticed the

posting date as 29.2.2004 instead of 21.2.2004. The learned counsel

submitted that the accused was also absent on 21.2.2004.

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 had been present on several posting

dates, the acquittal of the accused for non-appearance of the

complainant on one date is not proper. Under the above circumstances

it would be just and reasonable to set aside the order of acquittal.

Crl.A. No. 1784 of 2004

3

7. Accordingly this appeal is allowed. The order in C.C.No.

1365 of 2003 on the file of the Judicial First Class Magistrate ,

Kothamangalam dt. 21.2.2004 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

21.12.2010 for further proceedings.

(M.L. JOSEPH FRANCIS)
Judge
tm