S GOPAKUMAR Vs. S SREEKUMAR K

JUDGEMENT

(1.) THIS appeal is filed before this Court by the complainant in S.T.No.1525/2007 on the file of the Judicial First Class Magistrate-III, Thiruvananthapuram. The first respondent herein is the accused in that case which was filed by the complainant/appellant against the first respondent/accused alleging commission of the offence under Section 138 of the Negotiable Instruments Act relating to dishonour of a cheque. On 25/11/2009, the learned Magistrate dismissed the complaint and acquitted the accused under Section 256(1)Cr.P.C. due to non-appearance of the complainant. Against that order, the complainant filed this appeal.

(2.) HEARD the learned counsel for the appellant, the learned counsel for the first respondent and the learned Public Prosecutor.

(3.) AN order under Section 256(1)Cr.P.C. acquitting the accused is a final order of acquittal which operates as a bar under Section 300 Cr.P.C. to the trial of the accused for the same offence. Therefore, that order must show the wide discretion vested in that court has been properly exercised. Since the order under challenge was passed without examining the question whether there was sufficient reason for the complainant for his absence on that date as represented by the counsel appearing for the complainant and as mentioned in the petition filed by him for condoning his absence etc. Hence, the order dismissing the complaint and acquitting the accused under Section 256(1)Cr.P.C.is liable to be set aside in the interest of substantial criminal justice.