IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 740 of 2004()
1. V.K.HASSAN & SONS, REP.BY POWER OF
... Petitioner
Vs
1. A.M.SADIQ, PROPRIETOR,
... Respondent
2. STATE OF KERALA, REP.BY PUBLIC
For Petitioner :SRI.P.T.JOSE
For Respondent :SRI.T.O.XAVIER
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. 740 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. 1526 of
2001 on the file of the Judicial First Class Magistrate – II, Kochi
against the order of acquittal under Section 256 Cr.P.C.
dt.16.3.2004. 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. 24,501/- On
16.3.2004, 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
counsel for the first respondent.
3. The learned counsel for the appellant submitted that on
16.3.2004 the complainant was actually present in court, but he
could not enter into the court hall due to heavy rush.
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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 order under challenge shows that the complainant was
present in court on 23.1.2004 for giving evidence. As the party
submitted that the matter is likely to be settled, an adjournment was
given and the complainant was directed to be present for giving
evidence. Since the complainant was present on several occasions
and was ready to give evidence, the learned Magistrate ought not have
acquitted the accused due to the absence of the complainant on a
particular day. In the above circumstances it would be just and
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reasonable to set aside the order of acquittal and to restore the
complaint to file.
6. In the result, this appeal is allowed. The order in C.C.No.
1526 of 2001 on the file of the Judicial First Class Magistrate -II,
Kochi dt. 16.3.2004 dismissing the complaint and 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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