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Sree Gokulam Chit & Finance Co.(Pvt) Ltd., Represented by Its Power of Attorney Holder, M.C. Jomy, Senior Business Manager of The Company v/s Vanaja Rajendran & Another

    CRL.A. No. 866 of 2017 In Crl.L.P. No. 366 of 2017

    Decided On, 05 December 2017

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE B. SUDHEENDRA KUMAR

    For the Appellant: Mahesh V. Ramakrishnan, Advocate. For the Respondents: R1, T.J. Michael, Advocate, Amjad Ali, Public Prosecutor.



Judgment Text

1. The appellant is the complainant before the court below in S.T. No. 7 of 2016. The offence alleged is the offence under Section 138 of the Negotiable Instruments Act. The above case was posted to 15-7-2017 before the court below. On that date, the complainant was not ready to adduce evidence. In the said circumstances, the court below acquitted the accused under Section 256 (1) Cr.P.C.

2. Heard.

3. The learned counsel for the appellant has argued that the court below ought not have acquitted the accused under Section 256 (1) Cr.P.C. when the complainant was present before the Court and in the said circumstances, the order impugned cannot be sustained. By order dated 15-7- 2017, the learned Magistrate acquitted the accused under Section 256 (1) of Cr.P.C. The order of the court below is extracted hereunder:-

'Accused is absent, applied. Complainant present. Counsel for complainant applied stating that document is to be received. No evidence is adduced inspite of chances given on 5-11-16, 25-03-17, 15-07-17 (last chance) and today (last chance with no further time). There is wilful default on the part of the complainant. His presence without adducing any evidence is equal to his absence. Therefore, the accused is acquitted under Section 256 (1) Cr.P.C.'

4. It is clear from the above order that the Court below acquitted the accused under Section 256 (1) Cr.P.C. even when the complainant was present before the Court. Chapter XX of Cr.P.C. deals with the trial of summons cases by Magistrates.

5. Section 256 of Cr.P.C. reads as follows:-

'256. Non-appearance or death of complainant:- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day;

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

2. The provisions of sub-section (1) shall, so far as may be apply also to cases where the non-appearance of the complainant is due to his death'.

6. Section 256 of Cr.P.C. provides for disposal of a complaint in default. A plain reading of the provisions of Section 256 (1) Cr.P.C. makes it clear that the Magistrate has no jurisdiction to acquit the accused under Section 256 (1) Cr.P.C. when the complainant is present before the Court. The Court is having the discretion under Section 256 (1) Cr.P.C. to acquit the accused when the complainant is not present before the Court. However, the court lacks jurisdiction to acquit the accused under Section 256(1) Cr.P.C., when the complainant is present before the court. If the Court acquits the accused under Section 256 (1) Cr.P.C. when the complainant is present before Court, there can be no doubt that the said order of acquittal is illegal and incorrect, being contrary to the provisions of law.

7. In this case, the complainant was present before the court below. However, the learned Magistrate, ignoring the purport of the provisions under Section 256 (1) Cr.P.C., acquitted the accused erroneously holding that the presence of the complainant without adducing any evidence is equal to his absence. The law does not permit the court to acquit the accused under Section 256 (1) Cr.P.C. if the complainant is present before the court, even if the complainant is not ready to adduce evidence. Therefore, once the complainant is present before the Court, the question of acquitting the accused under Section 256 (1) Cr.P.C. does not arise at all. In the present case, since the learned Magistrate acquitted the accused when the complainant was present before the Court, the

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order passed by the learned Magistrate cannot be said to be legal, proper and correct and consequently, the same cannot be sustained. In the result, this appeal stands allowed, setting aside the order impugned and the matter is remitted to the court below for proceeding with the complaint afresh, in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the acquittal of the accused on 15-7-2017.
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