JOHNSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The non-appearance by the counsel for the complainant before the Magistrate Court when the case was called and the absence of the complainant were sufficient grounds for the Magistrate to resort to S. 256(1) Cr.P.C.; to acquit the accused and dismiss the complaint, and also whether the counsel was not bound by the authority of the Vakalath executed by the complainant to continue to represent him unless the Vakalath ceased to operate; are the questions posed before me for decision in this case.

(2.) The facts show that the complainant filed a complaint under S.138 of the Negotiable Instruments Act, 1881, in short the Act, before the Judicial First Class Magistrate II, Sulthan Bathery. When the complaint came up for hearing on 30.1.2002, counsel appearing for the complainant filed an application stating that the complainant was detained in judicial custody, in jail, in the State of Karnataka and, therefore, his absence for that day may be condoned. That application was allowed and the Court gave a fairly long adjournment, to 22.4.2002. On that day, when the case was taken up, neither the complainant nor the counsel, who filed the application on 30.1.2002, were present. There being, thus, no representation, the learned Magistrate acquitted the accused under 5. 256(1) Cr.P.C. The same is under challenge in this appeal.

(3.) The learned counsel for the appellant submitted that as the counsel for the appellant did not know the further developments in the criminal case in which the appellant was detained in judicial custody, he could not make any effective submission before the Court. It is also further submitted that since the matter was brought to the notice of the Court as per the earlier application that the complainant was in jail in connection with another criminal case, the Court ought to have been more liberal and dismissal of the complaint and acquittal of the accused in the case was not as per the discretion conferred on the Magistrate by S. 256(1), Cr.P.C.