This appeal is filed under Sec.378(4) Cr.P.C to challenge the order dated 13.9.2010 of the Chief Judicial Magistrate Court, Palakkad rendered in summary trial case, S.T.C.No.352/2009 whereby the complaint has been dismissed for the non-appearance of the complainant on that day leading to the acquittal of the accused under Sec.256(1) Cr.P.C. The summary trial case arose out of a private criminal complaint instituted by the complainant alleging that the accused has committed offence punishable under Sec.138 of the N.I.Act for alleged dishonour of the cheque in question for an amount of Rs.2 Lakhs. The impugned order dated 13.9.2010 reads as follows:
'This is a case a private complaint filed by the complainant under Section 138 of the N.I. Act.
2. The allegation against the accused is that towards the liability of Rs.2,00,000/- in favour of the complainant the accused issued a cheque for Rs.2,00,000/-. When the cheque was presented for collection it was dishonoured for the reason “Exceeds Arrangements”. There was no sufficient funds in the account. Complainant issued statutory notice to the accused demanding the cheque amount. Accused did not pay the amount. Hence the case under Section 138 of the N.I. Act.
3. After pre-cognizance enquiry the case was taken on the file under Section 138 of the N.I. Act. The accused entered appearance through his pleader and filed exemption under Section 205 of Cr.P.C. Particulars of offence were read over and the plea of the accused was recorded through pleader. He pleaded not guilty. Thereafter, the case was posted for trial. On the trial date, no proof affidavit was filed. The complainant is also not present. The complainant is not prepared top adduce any evidence. Hence, the complaint is dismissed and the accused is acquitted under Section 256(1) of Cr.P.C. The accused is set at liberty.'
4. The appeal was admitted on 13.1.2011 and notice has been served on the 1st respondent and learned Public Prosecutor has taken notice for the 2nd respondent State and so service has been duly completed.
5. The learned counsel for the appellant has urged in the memorandum of this appeal that on receipt of the complaint, the learned Magistrate has taken cognizance of the offence and issued summons to the accused and that the complainant was regularly appearing on most of the posting dates and accused was absent. On 13.9.2010, the complainant was absent in court due to unavoidable circumstances and that application was filed to excuse his absence. The learned Magistrate rejected his application. Thus, the averments of the appellant has not been rebutted by the 1st respondent. Moreover, the appellant would also rely on the decision of this Court in Joseph v. State of Kerala (2010 (4) KLT 697). More crucially the appellant would rely on the decision in the case Don Bosco v. Partech Computers Ltd.
(2005 (2) KLT 1003) wherein it has been held that although S.256 Cr.P.C. gives authority to the Magistrate to acquit the accused, it can only be done after applying the judicial mind and discretion. An arbitrary action on the part of the Magistrate, without applying the true spirit and intention of S.256 Cr.P.C., would create a dangerous situation, where the complainant has to approach the High Court to redress, his grievances. It would also cause unbearable hardships and delay in getting the matter ultimately disposed of. Such a situation would make the litigant public to lose faith in the judicial system. The Magistrate Courts should not take the absence of the complainant as an opportunity to increase the number of disposal of the cases. Mechanical, fanciful and whimsical disposals are absolutely not the rule of law as contemplated under S.256(1) Cr.P.C. The said provision has to be applied with all responsibility that is required of a Magistrate.
6. After having considered the totality of the facts and circumstances of this case, this Court is of the considered opinion that the court below ought not have dismissed the complaint due to the non-appearance of the complaint on the day in question. Accordingly, the impugned order rendered by the court below is set aside. The summary trial case, S.T.C.No.352/2009 shall stand restored to the file of Chief Judicial Magistrate Court, Palakkad. The court below shall render a final decision on the merits of the matter with due reasonable opportunity to both sides and in accordance with law. Having regard to the fact that the summary trial case instituted in the year 2009, there will be a further order in the interest of justice, that the court below shall endeavour to finally dispose of the case within six months from the date of receipt of a certified copy of this judgment.
The Criminal Appeal stands allowed as indicated above.
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ALEXANDER THOMAS, Judge.