K. Thankappan, J.@mdashWhen an application for early hearing of the appeal came up for orders, this Court heard the appeal itself and disposed
of the same.
2. By the impugned order the 2nd respondent was acquitted by the trial court u/s 256(1) Code of Criminal Procedure. The learned Counsel for the
appellant submits that the trial court had not complied with the provisions of Code of Criminal Procedure while passing the impugned order. The
learned Counsel for the appellant also submits that the order under challenge is not in accordance with the principles laid down by this Court in
decisions reported in Don Bosco Vs. Partech Computers Ltd., , G.F.S. Chits and Loans (P) Ltd. Vs. V.K. Rajesh and Another, and a decision of
the Apex Court reported in Associated Cements Co. Ltd. v. Keshwanand 1998(1) KLT 179 (S.C.).
3. A reading of the impugned order would show that the trial court acquitted the 2nd respondent for the reason that in spite of specific direction,
the appellant absent. As per the principles laid down in Don Bosco v. Partech Computers Ltd. (Supra), when the presence of the complainant was
quite unnecessary and the Magistrate could proceed with the case by adjourning the same even if there was no representation from the counsel, the
Magistrate should have adjourned the case, particularly when steps u/s 82 and 83 of the Cr.P.C. were pending against the accused. In G.F.S.
Chits & Loans (P) Ltd. v. Rajesh (Supra) this Court held that the courts should also bear-in-mind that unmerited, thoughtless disposal gives wrong
signal to the society, staking even public confidence in the system of administration of justice. In paragraph 17 of 1998(1) KLT 179 (Supra) the
Apex Court held as follows:
17. Reading the section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First
is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accused. Second is, when the
magistrate considers that personal attendance of the complainant is not necessary on that day the magistrate has the power to dispense with his
attendance and proceed with the case. When the court notices that complainant is absent on a particular day the court must consider whether
personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case
being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the
complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing
down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore, be exercised judicially and
fairly without impairing the cause of administration of criminal justice.
A reading of the impugned order would not show that the personal attendance of the appellant is essential on that day.
4. 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 order has been passed.
The appeal is allowed as above.
The parties shall appear before the court below on 7-9-2007.
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.
