Kerala High Court
Abdul Razaq Mangalasserry vs State Of Kerala on 30 October, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.A NO. 58 OF 2025
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2025:KER:81959
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 30TH DAY OF OCTOBER 2025 / 8TH KARTHIKA, 1947
CRL.A NO. 58 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 21.10.2025 IN Crl.L.P.
NO.308 OF 2024 OF HIGH COURT OF KERALA ARISING OUT OF THE
JUDGMENT DATED 31.05.2024 IN ST NO.37 OF 2023 OF JUDICIAL
MAGISTRATE OF FIRST CLASS II, CHAVAKKAD
APPELLANT/ COMPLAINANT IN ST.NO.37/2023 OF JUDICIAL FIRST
CLASS MAGISTRATE'S COURT-II, CHAVAKKAD :
ABDUL RAZAQ MANGALASSERRY
AGED 54 YEARS
S/O MOITHUNNY, MANGALASSERRY HOUSE,
PERUMBILAVI U P.O, OTTAPPILAVU,
PIN - 680543
BY ADVS.
SRI.E.S.SANEEJ
SMT.S.LEKHA
RESPONDENT/ STATE/ ACCUSED IN ST.NO.37/2023 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT-II, CHAVAKKAD :
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
PIN - 682031
CRL.A NO. 58 OF 2025
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2 MUHAMMED SAGEER
AGED 36 YEARS
S/O KUNJADATH ALI SAMBRI,
KUNJADATH, MANATHALA AMSOM AND DESOM,
CHAVAKKAD P.O, AND TALUK,
PIN - 680506
BY ADV SHRI.K.I.SAGEER
SMT. SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
30.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 58 OF 2025
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BECHU KURIAN THOMAS, J.
--------------------------------
Crl.A.No.58 of 2025
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Dated this the 30th day of October, 2025
JUDGMENT
The appellant was the complainant in S.T.No.37 of 2023 on the
files of the Judicial First Class Magistrate's Court-II, Chavakkad. By
judgment dated 31.05.2024, the accused has been acquitted under
Section 256 Cr.P.C. (wrongly mentioned as Section 250 Cr.P.C. in the
judgment).
2. The complaint was filed alleging that the cheque issued by
the accused for Rs.13,33,940/- when presented for encashment returned
dishonoured with the memo 'insufficient fund'. The complaint was filed
after complying with the statutory requirements and thereafter due to the
failure of the complainant to appear on the dates of posting, the accused
was acquitted.
3. I have heard the learned counsel for the appellant, the
learned counsel for the 2nd respondent as well as the learned Public
Prosecutor.
4. The complaint was lodged alleging commission of the offence
under Section 138 of the Negotiable instruments Act, 1881. The accused
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has been acquitted since the complainant failed to adduce evidence or to
appear before the trial court, despite specific directions to that effect.
5. Though Section 256 Cr.P.C confers power upon the
Magistrate to acquit the accused on his failure to appear on the day fixed
for hearing, the provision also provides for a discretion to the Magistrate
to adjourn the case to another 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.
6. In the decision in Associated Cement Co. Ltd. v.
Keshvanand (1998) 1 SCC 687 Supreme Court had observed that the
povision 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 to the court on
occasions when his presence is necessary. The provision thus, is intended
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to afford a protection to the accused against tactics deployed by a
complainant.
7. 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. In the instant case, the learned Magistrate had noted that the
complainant had repeatedly absented himself, still, considering the entire
circumstances, a lenient view can be adopted.
8. 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.
Accordingly, the impugned judgment dated 31.05.2024 in
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2025:KER:81959
S.T.No.37 of 2023 on the files of the Judicial First Class Magistrate's
Court-II, Chavakkad is hereby set aside and the matter is remanded for
fresh consideration. Both the appellant and the 2 nd respondent shall
appear before the jurisdictional court on 14.11.2025 and thereafter the
trial court shall dispose of the matter without undue delay.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
