IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 CRL.A.No. 725 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.210/2008 Dated 14/03/2008 CC.4187/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT(S): PETITIONER: ------------------------- M/S.KLM CREDIT SYNDICATE, MATHEWSON TRADE CENTRE, KALOOR, COCHIN-17, REPRESENTED BY ITS WORKING PARTNER, GEORGE KURIAPE, AGED 43 YEARS, S/O.LATE E.J.KURIAPE, RESIDING AT ELENJICKAL (THOPPIL) BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): RESPONDENTS: --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PARAMASIVAN.S., S/O.SANKARAN, NO.506, PALLITHOTTAM HOUSE, KALLAR, VATTAYAR P.O. PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 725 of 2008 ----------------------------------------------- Dated 15th September, 2010. JUDGMENT This appeal arises from an order of acquittal passed under Section 256(1) of the Code. 2. Appellant is the complainant. It is a company. A complaint was filed by the appellant against 2nd respondent herein alleging offence under Section Section 138 of the Negotiable Instruments Act. The case was taken on file on 1.8.2006 and thereafter summons was issued to the accused. On 23.1.2008, complainant was absent and hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge in this appeal. 3. Notice was served on the 2nd respondent in this appeal. He did not enter appearance and hence, petitioner's counsel was heard. Learned counsel for petitioner submitted that summons was issued and case was posted for taking steps. On two consecutive postings, there was no sittings and hence, the case was adjourned on notification. The clerk [Crl.A.No.725/2008] 2 attached to appellant's counsel took a wrong date and hence, the complainant happened to be absent. 4. It appears from the submissions made by appellant's counsel that the appellant did not appear in court for a period of two years from 2006 to 2008 even though summons was ordered. The case was posted for for issuance of summons. Section 256(1) lays down that the accused can be acquitted under the said Section only on two days specified therein. One of such day is the day appointed for appearance of accused and the other day is for “hearing”. Without a day being fixed for appearance of the accused, there cannot be any such day. Hence, the oder under challenge cannot be said to have been passed on either of the days stated in Section 256(1) of the Code. 5. Further, if there is failure on the part of the complainant to take steps for issuance of process the procedure to be followed is not under Section 256(1) of the Code. The accused cannot be acquitted under Section 256(1) of the Code on the failure of the complainant to take steps for issuance of summons even if the complainant is absent. Section 256(1) of the Code does not permit such acquittal. [Crl.A.No.725/2008] 3 6. In the above circumstances, the order under challenge is illegal and unsustainable and hence, 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) Parties shall appear before the trial court on 25.10.2010. The appeal is allowed. Sd/- K.HEMA, JUDGE. krs.