R K SATHEESH KUMAR Vs. S MANIYAN

JUDGEMENT

(1.) The appeal is filed by the complainant against the acquittal order passed in C.C.No. 25/1997 on the file of the Addl. Chief Judicial Magistrate, Thiruvananthapuram. The learned counsel for the appellant submits that the case was posted to 9-6-1999 for hearing, but in an inadvertent mistake on the part of the Clerk of his counsel, the date of next posting was noted as 16-6-1999. It is also submitted that on 9-6-1999 when the case was called, neither the appellant nor his counsel was present and hence the trial court acquitted the 1st respondent under section 256 Cr.P.C.

(2.) It is not discernible from the order that personal attendance of the appellant is necessary on that day. As per a decision reported in Associated Cements Co. Ltd. V. Keshwanand (1998(1) KLT 179 (S.C.), the power under section 256 can be exercised by the court only in exceptional circumstances. In the above decision in paragraph 17 the Apex Court held as follows:-

(3.) In the above circumstances, this Court is of the view that the order under challenge is liable to be set aside and the matter has to be remitted to the trial court for fresh consideration. Ordered accordingly. The trial court is directed to consider the matter afresh from the stage at which the order impugned has been passed. The appeal is allowed as above. The parties shall appear before the court below on 23-7-2007 The records of the case shall be forwarded to the trial court forthwith. It is relelvant to note that only because of the absence of the appellant, the 1st rspondent is dragged to this Court. Hence, it is only proper for this Court to allow a reasonable costs to the 1st respondent. Therefore, the appellant is directed to deposit before the court below an amount of Rs.2,000/- on or before the date of posting of the case. If the amount is deposited, the 1st respondent is permitted to withdraw the same.