Kerala High Court
Suresh vs Ramesh on 31 October, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
CRL.A NO. 1996 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947
CRL.A NO. 1996 OF 2025
AGAINST THE ORDER DATED 21.10.2025 IN Crl.L.P. NO.249 OF
2025 OF HIGH COURT OF KERALA ARISING OUT OF THE ORDER IN CC
NO.638 OF 2018 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,
THRISSUR
APPELLANT/ COMPLAINANT :
SURESH
AGED 51 YEARS
S/O. MADHAVAN, KONTARAMVALAPPIL,
IRINGAPRAM DESOM, GURUVAYOOR AMSAM,
CHAVAKKAD TALUK, THRISSUR,
PIN - 680506
BY ADVS.
SHRI.K.K.SUBEESH
SHRI.R.VINU RAJ
SRI.ROY THOMAS (MUVATTUPUZHA)
SMT.SRADHA MOHAN
SHRI.RAHUL PREMAN K.
RESPONDENT/ ACCUSED & STATE :
1 RAMESH
S/O. BHASKARAN,
KALIYAMAKKAL HOUSE,
KANIPPAYYOOR VILLAGE,
DESOM, THALAPPILLY TALUK,
PIN - 680517
CRL.A NO. 1996 OF 2025
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2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM,
PIN - 682031
SMT. SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
31.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1996 OF 2025
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BECHU KURIAN THOMAS, J.
--------------------------------
Crl.A.No.1996 of 2025
---------------------------------
Dated this the 31st day of October, 2025
JUDGMENT
The appellant was the complainant in C.C.No.638 of 2018 on the
files of the Judicial First Class Magistrate's Court-I, Thrissur. By order
dated 23.01.2023, the accused has been acquitted under Section 256(1)
Cr.P.C. due to the failure of the complainant to appear, despite granting
several opportunities.
2. The complaint was filed alleging offences punishable under
Section 138 of the Negotiable Instruments Act, 1881. An amount of
Rs.30,500/- was allegedly due to the complainant for which a cheque was
issued, which, when presented for encashment returned dishonoured for
the reason 'funds insufficient'. After complying with the statutory
formalities, the complaint was filed.
3. When the case was posted for evidence on 05.01.2022, the
complainant failed to adduce any evidence and it was adjourned to
09.02.2022 and again repeatedly to various dates. The case was posted
as a last chance to 27.10.2022 on which date also, the case was
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requested to be adjourned. Again on 23.01.2023, the complainant was
absent and the counsel also submitted that he had no instruction from the
complainant and hence the learned Magistrate acquitted the accused.
4. 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 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.
5. 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
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occasions when his presence is necessary. The provision thus, is intended
to afford a protection to the accused against tactics deployed by a
complainant.
6. 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.
7. 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. 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.
8. Though the learned Magistrate had granted several
opportunities to the complainant to adduce his evidence, he failed to do
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so. However, since a lenient view can be adopted, taking note of the fact
that the complainant ought to be rendered a judgment on merits, I am of
the view that the impugned order can be set aside.
Accordingly, the order dated 21.10.2025 in C.C.No.638 of 2018
on the files of the Judicial First Class Magistrate's Court-I, Thrissur is
hereby set aside and the matter is remanded for fresh consideration. The
complainant as well as the accused shall appear before the trial court on
17.11.2025 and thereafter, the learned Magistrate shall take steps to
dispose of the matter without undue delay.
The appeal is allowed as above.
Sd/-
BECHU KURIAN THOMAS, JUDGE
RKM
