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2016 DIGILAW 644 (KER)

Prathapan v. Safarunisa

2016-07-26

B.KEMAL PASHA

body2016
JUDGMENT : Challenging the acquittal of the 1st respondent accused in CC No. 742/2009 of the Judicial First Class Magistrate's Court, Kodungallur, the complainant before the court below has come up in appeal. The case before the court below is as a result of a private complaint filed by the appellant herein as complainant, against the 1st respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The case stood posted before the court below on 16.01.2010. On 16.01.2010, the appellant could not appear before the court below and consequently, the learned counsel for the complainant before the court below filed an application for condoning the absence of the complainant. The court below, by disregarding the application, acquitted the accused through the impugned order. 3. Heard learned counsel for the appellant. There is no representation for the 1st respondent. 4. Apparently, the impugned order is incorrect. Apart from the fact that the same is factually incorrect, the said order is legally incorrect. When an application was filed by the counsel for the complainant for condoning the absence of the complainant, the court below ought to have considered the application of the proviso to Section 256(1) Cr.P.C. As a short cut, it seems that the court below has passed the order in a printed form, wherein it has been stated that "The complainant not being present either in person or by Pleader, the accused is acquitted under Section 256 Cr.P.C.". This is not a case wherein the complainant was not represented by the Pleader. An application for condoning the absence of the complainant was filed within the meaning of the proviso to Section 256(1) Cr.P.C. When such an application was filed, the learned Magistrate ought to have passed a speaking order showing whether in the opinion of the learned Magistrate the personal attendance of the complainant was required or not. If the personal presence of the appellant was required before the court below, that ought to have been reflected in the impugned order. Therefore, the impugned order is factually incorrect as well as the same is legally incorrect. Matters being so, the impugned order is liable to be set aside. In the result, this Criminal Appeal is allowed and the impugned order is set aside. Therefore, the impugned order is factually incorrect as well as the same is legally incorrect. Matters being so, the impugned order is liable to be set aside. In the result, this Criminal Appeal is allowed and the impugned order is set aside. The complaint is restored to file and is remitted to the court below for fresh disposal in accordance with law. The parties shall appear before the court below on 10.08.2016.