This appeal has been instituted under Section 378(4) of the Code of Criminal Procedure to impugn the order dated 18.09.2014 of the Chief Judicial Magistrate Court, Ernakulam in Calendar Case C.C No.194 of 2009, whereby the accused has been acquitted under Section 256(1) of the Code of Criminal Procedure due to the absence of the complainant. The case arose out of a private criminal complaint instituted by the appellant herein alleging that the accused committed offences punishable under Sections 500, 501 and 502 of the Indian Penal Code. The impugned order dismissing the private criminal complaint and acquitting the accused reads as follows: “The case was called on for hearing today to which it had been posted/adjourned.
The complainant not being present either in person or by pleader, the accused is acquitted u/s.256(1) of Criminal Procedure Code.
Dated this the 18th September, 2014.”
2. Appeal was admitted and notice was issued to the 1st respondent on 11.11.2014.
3. Sri.Sreekumar V. Chelur Advocate has entered appearance for R1 and learned Public Prosecutor has taken notice for R2.
4. It is submitted by Sri.K.R.Vinod, learned counsel for the appellant, that after the learned Magistrate has taken cognizance of the case, the accused did not enter appearance after issuance of summons and thereafter pursuant to the non- bailable warrant issued, the 1st respondent (accused) had appeared before the court and the case was adjourned to 23.04.2014 for recording plea. The case was adjourned on two occasions and was finally posted on 18.09.2014 for recording the plea of 1st respondent (accused) and due to the inadvertent mistake of the clerk of the counsel for the appellant, the posting date was wrongly noted and thus, on 18.09.2014, there was no representation either from the appellant or by his counsel. It is in these circumstances the learned Magistrate had acquitted the accused under Section 256(1) of the Code of Criminal Procedure as per the impugned order dated 18.09.2014.
5. Sri.Sreekumar V.Chelur, learned counsel for the 1st respondent, has fairly submitted that the matter may be remitted to the court below for a decision on merits.
In the facts and circumstances of this case and in the interest of justice this Court is of the considered opinion that the interest of justice would be better subserved if the matter is remitted back to the court below in order to facilitate the rendering of decision on merits after affording reasonable opportunity to both sides. Accordingly, the impugned order dated 18.09.2014 in C.C No.194 of 2009 passed by the Chief Judicial Magistrate Court, Ernakulam is set aside. Calendar Case C.C No.194 of 2009 stands restored to the file of the Chief Judicial Magistrate Court, Ernakulam. The court below will render a decision on merits after affording reasonable opportunity to both sides and in accordance with law. Since the Calendar Case is of the year 2009, in the interest of justice, it is further ordered that the case has to be finally disposed by the court below within a period of six months from 01.12.2014. The appellant (complainant) and 1st respondent (accused) will appear before the court below on 10.12.2014 and the appellant shall produce a certified copy of this judgment before the court below on that day.
With these observations and directions, the Crl.Appeal stands allowed as indicated above.
Sd/-
ALEXANDER THOMAS, JUDGE.
vdv //True Copy// P.A to Judge