E L JOSEPH Vs. DHARMARAJAN

JUDGEMENT

(1.) This criminal appeal is directed against the order of acquittal dt. 8-12-1994 in S.T. Case No. 111/1992 of the Judicial First Class Magistrate's Court, Kunnamkulam. The appellant is the complainant in the above case. The respondents are the respondents before the Court below. The respondents were charged for offences under Ss. 143, 147, 447, 427 and 506(ii) read with S. 147, I.P.C. The complaint of the appellant is that when the case was posted for evidence on 8-12-1994, he could not appear before the Court as the date was mistakenly noted by his advocate clerk. He was made to understand that the case stands posted to 9-12-1994. On the day when the case was called on for hearing, as the appellant was not present in Court and no representation was made, the Court below acquitted the accused. According to the counsel the appellant was prosecuting the matter diligently and because of the inadvertent mistake of the posting date, he could not appear before the Court on 8-12-1994. To prove that the posting date was mistakenly noted, the Advocate Clerk has filed an affidavit.

(2.) The order of acquittal should not be a matter of routine followed automatically in the absence of the complainant. All the surrounding circumstances and facts have to be taken into consideration before the Magistrate dismisses the case. Section 256(1) invests in the Court a discretion. It should not be used for merely disposing of the case. The real test is good faith. On going through the facts of the case and the diary, I feel that in order to meet the ends of justice the order of acquittal has to be set aside and the matter has to go back.

(3.) In the result, I hereby set aside the order dt. 8-12-1994 in S.T. Case No. 111/1992 on the file of the Judicial First Class Magistrate, Kunnamkulam, and the matter is sent back to the Court below for fresh disposal after affording reasonable opportunities to both parties to adduce evidence. The appellant shall appear before the Court below on 1-7-1998.The appeal is disposed of as above.Appeal allowed.