Crl.Appeal No.2041/2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** **CRL.A.No. 2041 of 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN ST 3148/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT, OTTAPALAM DATED 22-09-2004** **APPELLANT(S)/COMPLAINANT::** **-------------------------C.V.BIJOY, S/O.KUTTAPPAN, RESIDING AT CHEGONDAN, MALIYEKKAL VEEDU, P.O.VALAMBIRIMANGALAM SREEKRISHNAPURAM, PALAKKAD.** **BY ADVS.SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R** **RESPONDENT(S)/NOT PARTY/ACCUSED::** **----------------------------------** **1. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. M.K.KESAVAN ALIAS ANIYAN, S/O.V.K.MENON, RESIDING AT PUTHENKULAM VEEDU, PUZHAKKATTIRI P.O. ANGADIPURAM (VIA), MALAPPURAM DISTRICT.** **R2 BY ADV. SRI.C.P.UDAYABHANU BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** **'C.R.'** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.2041 of 2004 ---------------------------------------------Dated this the 24[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the complainant against the acquittal of the accused in S.T.No.3148/2000 of the Judicial First Class Magistrate, Ottapalam under section 256 of Code of Criminal Procedure (hereinafter referred to as the Code) . The above complaint was filed against the accused u/s.138 of the Negotiable Instruments Act. On 22.9.2004 the complainant was absent and his counsel applied for leave and sought for an adjournment, which was rejected by the learned Magistrate, since there was a specific direction to produce the complainant for evidence. On that day the accused was absent, his application was allowed, however the accused was acquitted by the learned Magistrate. Being aggrieved by that complainant preferred this Crl. Appeal No.2041/2004 2 appeal. 2. The main contention put forward by the appellant is that he was hospitalized and he could not appear before Court, therefore court should have adjourned this case to another day for giving an opportunity to prove the allegation. 3. There was no appearance for the accused, hence learned Public Prosecutor in reply submitted that the section empowers that the accused should be acquitted in cases where the complainant is absent on the specific date of hearing. ## 4. Section 256 of the Code reads as follows:- “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 herein before 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, 3 Crl. Appeal No.2041/2004 apply also to cases where the non-appearance of the complainant is due to his death.” 5. A perusal of Section 256(1) of the Code shows that in a case where summons has been issued to the accused for his appearance on a particular day or any day subsequent thereto and the complainant does not appear the Magistrate shall acquit the accused, unless he thinks it proper to adjourn the hearing to some other day. If the complaint is represented by a pleader, where the Magistrate thinks that personal attendance of the complainant is not necessary, he may dispense with his attendance and proceed with the case. In a case where the complainant is absent on previous several occasions and he is negligent in producing witnesses, the court would be justified in drawing an adverse inference from his absence and acquit the accused. In such a situation also he has to decide the course to be followed only after taking into account the materials available on record and on the application filed by the lawyer. Even then, it is open to the Crl. Appeal No.2041/2004 4 court to proceed with the case if the presence of the complainant is not required on that day. In certain cases number of adjournments have been given not at the instance of the complainant but for some other reasons and the complainant was present on all the previous hearings and on a particular day, complaint is absent, it cannot be said that the complainant was slow in prosecuting the case. In such cases, there is nothing wrong in adjourning the case to another date so that Magistrate can satisfy himself that the absence of the complainant was not due to lack of diligence. But if the complainant's presence is not required on the particular day, he may dispense with his attendance and proceed with the case. In all such situation, the Magistrate is expected to exercise his discretion judicially. 6. A single Judge of this Court in **C.K. Sivaraman Achari** v. **D.K. Agarwall and Anr** [1978 Crl.LJ 1376] had the occasion to consider this legal proposition and held as follows: Crl. Appeal No.2041/2004 5 “Under the section three courses are open to the court in a case where the complainant is absent on the date of hearing. The Magistrate may (1) acquit the accused or (2) adjourn the case for a future date or (3) dispense with the attendance of the accused and proceed with the case. Which course is to be followed in a particular case is entirely left to the discretion of the Court, which discretion, however, is expected to be exercised in a judicial manner. While exercising the discretion, the courts should not forget that their very existence is for dispensation of justice, no doubt within the frame work of the statutes governing particular cases. But even such statutes should be availed of with a view to advance justice and not to deny it”. ## 7. Apex Court in **Associated Cement Co.Ltd** v. **Keshavanand** ## [1998 (1) SCC 687] held as follows: “Reading Section 247 of the Criminal Procedure Code, 1898 (Section 256 of new Code) in its entirety would reveal that two constraints are imposed on the court for exercising the power under the section. The first is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. The second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of Crl. Appeal No.2041/2004 6 the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason, if the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. The case in hand shows that learned Magistrate has no opinion that the complainant is following a dialatory tactics or he had forced the accused to attend the Court on all posting date and complainant is evading of such appearance on those posting dates. 8. What is seen under Section 256 of the Code of Criminal Procedure is that a judicial discretion has been granted to the Magistrate to adjourn the case to another day for hearing when the complainant is absent on that date. The discretion provided shows that it should be exercised very cautiously. The allegation of the appellant is that he was laid Crl. Appeal No.2041/2004 7 up and could not appear before Court, but, no medical certificate has been produced in the trial Court to substantiate that point. I have noticed diary extract of the trial Court, in which it is stated that on 1.10.2003, further proceedings in the above complaint were stayed by the Sessions Judge. Subsequently, the complainant was absent on 19.3.2004 and 23.6.2004, hence the case was posted to on 10.9.2004, on that day both complainant and accused were absent applied, on that day the stay order was vacated and the case was posted for evidence of the complainant on 22.9.2004. On that day, the application of the accused was allowed, but the application of the complainant was rejected and acquitted the accused. 9. The Magistrate in complaint cases should not dismiss the complaint and acquit the accused by calling the case immediately. Where the case is fixed for appearance of both parties the complainant and accused is represented by lawyers, 8 Crl. Appeal No.2041/2004 rejection of the application of the complaint's lawyer without recording the reason is illegal. In such situation, Court should record the reason for his absence and set the law in motion direct the complainant to appear before Court in person on a particular date for the enquiry. If after giving such opportunity the complainant remains absent and not obey the directions issued by the Court, dismissal of the complaint under such circumstances is proper. If there is sufficient reason for his absence an order passed against him in his absence will vitally affect him and the consequence will be serious. If the Magistrate subsequently discovers that there had been good reason for the absence of the complainant, the Magistrate has no power to correct that mischief. In order to avoid this embarassing situation it is not proper to throw out the case in a hurry manner, when the complainant states his bonafides. Considering the facts and circumstances of the case, it is necessary to give a chance to the complainant to Crl. Appeal No.2041/2004 9 prove his case in the trial Court. In the result, the order of acquittal passed by the trial Court is set aside and the matter is remitted to the learned Judicial First Class Magistrate, Ottapalam for fresh consideration. Both parties are directed to appear in the trial Court on 07.4.2016. Crl. Appeal is disposed of. **P.D. RAJAN, JUDGE.** acd