IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 CRL.A.No. 2324 of 2008() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.627/2008 Dated 29/08/2008 ST.1285/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT - IV, KOCHI - 5 ........................................................... APPELLANT / COMPLAINANT : ----------------------------------------- M/S. WEST BAKES OVENS PVT. LTD, 56/326, 2ND FLOOR, ROHIT CHAMBERS, MANORAMA JUNCTION, ERNAKULAM, KOCHI – 16, REPRESENTED BY ITS AUTHORIZED AGENT SRI. PEARSON FABER, AGED 35, S/O. ANTONY FABER, THARAYIL HOUSE, THRIKKAKARA, KOCHI-21. BY ADV. SRI. T. KURIAKOSE PETER RESPONDENTS / ACCUSED & STATE : ----------------------------------------------------- 1. N.J. BASURAN, PROPRIETOR, VAYALAVARAM TRADERS, MUZHANGODIKKAVU TEMPLE ROAD, PULIMUKKU, KAYAMKULAM – 690 502. 2. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn K. HEMA, J. ------------------------- Crl.A No.2324 of 2008 -------------------------- Dated this the 3rd September, 2010 J U D G M E N T This appeal is filed challenging the order under Section 256 (1) of the Code of Criminal Procedure. 2. The appellant filed a complaint against the 1st respondent alleging offence under Section 138 of the Negotiable Instruments Act . The case was taken on file as early as on 14.12.2005. The case was posted from time to time. The accused did not appear on summons and hence the Court issued non-bailable warrant. Thereafter, he appeared and the case was posted for "evidence". Proof affidavit was filed by the complainant, on 23.10.2007 but the accused made a request for settling the case and the case was referred to Lok Adalath. In the Lok Adalath, the case was not settled and hence it was posted for "evidence" again to 16.4.2008 onwards . On 7.5.2008, the complainant was absent and hence the accused was acquitted. 3. Though the accused-respondent was served in this appeal, he did not enter appearance. Heard learned Crl.A No.2324 of 2008 2 counsel for the appellant and learned Public Prosecutor. Learned counsel for appellant submitted that after the case was referred to the Lok Adalath posting date was not given by the court and hence, complainant could not appear in Court. His absence was not willful. It is also pointed out that the date on which the complainant was acquitted on the ground of his non-appearance the accused also was absent. The order under challenge does not reveal that the accused was present on the day, on which he was acquitted. The complainant was vigilant in prosecuting the case and he had also filed proof affidavit, but thereafter, the case was referred to Lok Adalath, since the accused made a request that the case was pending for a period of three years. But, the court acquitted the accused for non-appearance of the complainant. 4. On hearing both sides and going through the order under challenge, and the proceeding sheet and also Section 256 (1) of the Code I find that the order under challenge is not sustainable. It is clear from the impugned order that the case was adjourned for "evidence" on the day on which the accused was acquitted. Such day is not one of Crl.A No.2324 of 2008 3 the days specified in Section 256 (1) of the Code. I have already held in P.V Joseph Vs. State of Kerala & Another (Crl.A No.485 of 2007) that an accused cannot be acquitted under Section 256 (1) of the Code on any day to which the case is posted for "evidence". In the light of the dictum laid down in the said case, the order under challenge cannot be sustained. The order of acquittal is unsustainable and the case is to be remanded to the trial court for fresh consideration and disposal. in accordance with law. In the result, the following order is passed: (i) The order under challenge in this appeal is set aside. (ii) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law. (iii) Appellant shall report before the trial court on 4.10.2010. The appeal is allowed. K.HEMA, JUDGE ma