IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 CRL.A.No. 1308 of 2004() ------------------------ CC.357/2001 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT(S): COMPLAINANT: -------------------------- HAMIDKUTTY SHAJAHAN, S/O. HAMIDKUTTY, FLAT NO.F3 D, PANCHARATNA, YESORAM APARTMENTS, NOW AT COMPUTER PLAZA, FIRST FLOOR OFFICE-103, P.O.BOX NO.23695, DUBAI, REPRESENTED BY HIS POWER HOLDER SAJU P.MAKKAR, S/O. MAKKAR. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S): ACCUSED AND STATE: --------------------------------- 1. NOUSHAD, S/O. OLIYATH MAMMU, KALVATHY, FORT KOCHI, NOW RESIDING AT NADUVILAKATH HOUSE, AZHEEKODE, KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1308 of 2004 ----------------------------------------------- Dated 9th March, 2011. J U D G M E N T This appeal arises from an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure ('the Code', for short). 2. The appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file and the accused did not appear. Therefore, non-bailable warrant was issued against him. On a day to which the case was posted, accused was acquitted under Section 256(1) of the Code. 3. Notice was served on first respondent/accused, by affixture, but he did not enter appearance before this Court. On going through the order under challenge itself, it is clear that the trial court has not applied its mind, as to the nature of the day to which the case was posted, while acquitting the accused. A reading of Section 256(1) of the Code shows that accused can be acquitted under the said provision on the ground of non-appearance of complainant only on two days Crl.Appeal No.1308/04 2 specified therein. An order of acquittal under Section 256(1) of the Code can be passed only on the day to which the case is posted for appearance of accused or for hearing the prosecution. But the day on which accused was acquitted is not either of the days specified in Section 256(1) of the Code. Hence, the order under challenge is unsustainable and is liable to be set aside. In the result, the following order is passed : (i) The impugned order is set aside. (ii) The court below shall take the case on file and dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 25.4.2011. The appeal is allowed. K.HEMA, JUDGE. tgs