IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 CRL.A.No. 1842 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN ST.1156/2006 ON THE FILE OF J.F.C.M.IX, THIRUVANANTHAPURAM. .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ K.SIVASANKARAN, SANKAR NIVAS, T.C.42/1116(1) SREEVARAHAM, VALLAKADAVU PO, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.LALITHA, SAIWALA, C/O.AIRPORT MANAGER'S OFFICE, AIRPORT AUTHORITY OF INDIA, THIRUVANANTHAPURAM AIR PORT, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. PUBLIC PROSECUTOR SR.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 9.9.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1842 of 2009 ---------------------------------------------- Dated 9th September, 2010. J U D G M E N T This appeal arises from the order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. 2. Appellant is the complainant. He filed a complaint against second respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The complaint was taken on file and the case was posted to different dates. On 27.4.2009, the complainant was absent. Hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge. 3. Learned counsel for the appellant submitted that the clerk attached to his office noted the posting date wrongly and the complainant's absence was not wilful. The complaint was filed as early as on 28.11.2005 and the case was pending before the court, over a period of four years. In the meantime, the accused absconded and it was with great difficulty that his presence could be procured. The complainant was vigilant in prosecuting the case and hence, the court ought to have Crl.A. NO.1842/09 2 adjourned the case, instead of acquitting the accused, it is submitted. 4. The second respondent was served, but she did not appear. On going through the order under challenge, it is clear that the case was posted for evidence to 27.4.2009, on which day, the accused was acquitted on the ground that the complainant is absent. A reading of Section 256(1) of the Code reveals that if the complainant is absent, the Magistrate can acquit the accused on the two days specified therein. Those days are; (1) the day appointed for the appearance of the accused, if the summons has been issued on complaint and (2) any day subsequent thereto to which the hearing may be adjourned. 5. Section 256(1) does not permit the court to acquit the accused on any day other than the two days specified in the section. Necessarily, the court cannot acquit the accused on the day to which the case is posted for evidence. In the light of the decision reported in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) an accused cannot be acquitted on the day on which the case is posted for evidence. In the above circumstances, the order of acquittal Crl.A. NO.1842/09 3 passed under Section 256(1) of the Code cannot be sustained. Hence, 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 18.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs