Kerala High Court
Adakkamundakkal Financiers vs Jessy Binoy on 4 November, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.A NO. 1579 OF 2025
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2025:KER:83376
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947
CRL.A NO. 1579 OF 2025
AGAINST THE ORDER DATED 30.06.2025 IN Crl.L.P. NO.213 OF
2025 OF HIGH COURT OF KERALA ARISING OUT OF THE ORDER DATED
15.01.2025 IN ST NO.5003 OF 2023 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, KOTTAYAM
APPELLANT/ COMPLAINANT :
ADAKKAMUNDAKKAL FINANCIERS
LOURDE MATHA SHOPPING COMPLEX, 465,
PALLIKKATHODU, ARUVIKUZHY,
REPRESENTED BY ITS PROPRIETOR ANTONY ZACHARIA,
S/O.LATE ZACHARIA ANTONY,
ADACKAMUNDAKKAL HOUSE, ARUVIKUZHY P.O,
PALLIKKATHODU, KOTTAYAM DISTRICT,
PIN - 686503
BY ADV SHRI.BALRAM S.A.
BY.ADV.RUBY K.JOSE
RESPONDENT/ ACCUSED & STATE :
1 JESSY BINOY
W/O.BINOY P.T, PLAPPARAMBIL HOUSE,
PILICKALKAVALA P.O, KOTTAYAM DISTRICT,
PIN - 686515
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
CRL.A NO. 1579 OF 2025
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2025:KER:83376
HIGH COURT OF KERALA,
PIN - 682031
BY ADV.RUBY K.ROY
BY SRI. NOUSHAD K. A., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
04.11.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1579 OF 2025
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BECHU KURIAN THOMAS, J.
--------------------------------
Crl.A.No.1579 of 2025
---------------------------------
Dated this the 4th day of November, 2025
JUDGMENT
The appellant challenges the judgment of acquittal of the
accused under Section 256 of the Code of Criminal Procedure, 1908
by judgment dated 15.01.2025 in S.T.No.5003 of 2023 on the files
of the Judicial First Class Magistrate's Court-I, Kottayam. As per the
impugned judgment, the learned Magistrate had, after observing
that the complainant had been repeatedly absent despite sufficient
opportunity having been granted to adduce evidence, acquitted the
accused.
2. The appellant filed the complaint under Section 132 of
the Negotiable Instruments Act, 1881, alleging that a cheque issued
in discharge of a loan availed by the accused was dishonoured due
to insufficiency of funds when presented for encashment. The
cheque amount was Rs.6,33,000/- and the cheque was dated
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05.07.2019 drawn on Federal Bank Limited, Pallikathodu Branch.
Subsequent to compliance of the statutory requirements, complaint
was filed.
3. When the case was posted on 15.01.2025, since it was
noticed that the complainant was absent continuously and as the
case was posted for evidence, the learned Magistrate acquitted the
accused.
4. I have heard the learned counsel for the appellant, the
learned counsel for the first respondent as well as the learned Public
Prosecutor.
5. A perusal of the proceedings in S.T.No.5003 of 2023 on
the files of the Judicial First Class Magistrate's Court-I, Kottayam
reveals that the complainant was present in Court on 09.12.2024,
12.12.2024 and 27.12.2024. It was only on the next posting date
i.e. on 15.01.2025 that the complainant was absent. The
observation of the learned Magistrate that the complainant was
absent continuously is therefore incorrect.
6. Though Section 256 Cr.P.C confers power upon the
Magistrate to acquit the accused on his failure to appear on the day
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fixed for hearing, the provision also provides for a discretion to the
Magistrate to adjourn the case to some other day. The proviso to
the said provision also contemplates the grant of an adjournment in
a situation where the Magistrate is of the opinion that the personal
appearance of the complainant was not necessary on the said date.
It is thus evident from a reading of the provision that an order of
acquittal even under section 256(1) Cr.P.C is not a routine
procedure or to be carried out automatically. The Magistrate must
consider the surrounding circumstances including whether the case
has been prosecuted with bona fides or in good faith.
7. In the decision in Associated Cement Co. Ltd. v.
Keshvanand [(1998) 1 SCC 687] Supreme Court had observed
that the provision affords some deterrence against dilatory tactics
on the part of a complainant who set the law in motion. The Court
also observed that an accused is forced to attend the court on all
posting days and it will be a harassment to him, if the complainant
does not turn up in court on occasions when his presence is
necessary. The provision thus, is intended to afford a protection to
the accused against tactics deployed by a complainant.
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8. Though the power is available, it ought not to be
interpreted to mean that, if the complainant is absent, the court
must acquit the accused without any other option. Invariably, such
a procedure will only end up in continuing the litigation further, by
the aggrieved resorting to approach the higher forum for redressal
of his grievance. Hence courts should not normally proceed to pass
an order of acquittal in an automatic manner merely on the
complainant's absence from the court on a particular date. There
should be an application of mind to the question as to whether an
order of acquittal under section 256 Cr.P.C should be passed.
9. In the instant case, the learned Magistrate had noted
that the complainant had repeatedly absented himself which itself is
incorrect. Since the accused has been acquitted on a technicality
for the failure of the complainant to appear on the date posted for
evidence, an opportunity ought to be granted to the complainant to
adduce his evidence. Hence, I am satisfied that the impugned order
ought to be set aside and the complainant be given an opportunity
to adduce his evidence.
10. Having regard to the circumstances arising in the case
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as revealed from the proceedings before the trial court, I am
satisfied that the impugned order is liable to be set aside and the
matter be remanded for fresh consideration.
Accordingly, the judgment dated 15.01.2025 acquitting the
accused under Section 256 Cr.P.C.in S.T.No.5003 of 2023 on the
files of the Judicial First Class Magistrate's Court-I, Kottayam is
hereby set aside and the matter is remanded for fresh
consideration. The appellant as well as the first respondent shall
appear before the trial court on 24.11.2025 and thereafter the
matter shall be considered and disposed of without undue delay.
Both the appellant and the first respondent shall co-operate with the
trial.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
