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. 2609 of 2008() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1685/2008 Dated 03/11/2008 CC.756/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT - III, ALUVA .............................................................................................................................. APPELLANT / COMPLAINANT : ----------------------------------------- BABU.M.P., 26 YEARS, S/O.PAULOSE, MANJALY HOUSE, ELAVOOR P.O., ANGAMALY REP. BY HIS POWER OF ATTORNEY HOLDER PAULOSE, AGED 58 YEARS,MANJALY HOUSE, ELAVOOR, ANGAMALY. BY ADV. SRI. JAISON JOSEPH RESPONDENTS / ACCUSED AND STATE : --------------------------------------------------------- 1. GIBY THOPPIL AUGUSTINE S/O. AUGUSTINE,THOPPIL HOUSE EZHUPUNNA SOUTH.PO, KAILASAM KARA, ALAPUZHA DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR R1 BY ADV. SRI. RUSSEL JOY SRI.JOHN JOSEPH (ROY) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn K. HEMA, J. ------------------------- Crl.A No.2609 of 2008 -------------------------- Dated this the 3rd September, 2010 J U D G M E N T This appeal arises from an order of acquittal 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 on 18.6.2005 and the accused entered appearance on summons. His plea was recorded. The matter was reported settled. Rs.10,000/- was paid to the complainant and the case was adjourned for payment of Rs.20,000/- as last chance to 28.8.2008. 3. The accused was unable to pay the amount and the case was posted "for evidence". The accused did not turn up and hence non-bailable warrant was issued to the accused. Notice was also issued to the sureties. On the date on which the sureties appeared and sought for production of accused, the complainant was absent. Hence accused was acquitted under Section 256 (1) Cr. P.C. The above order is challenged in this appeal. Crl.A No.2609 of 2008 2 4. According to the learned counsel for the appellant, the trial court ought not to have acquitted the accused, since the sureties sought for time to produce accused and he was not even produced, in execution of the warrant or by the sureties. The court ought to have given a reasonable opportunity to the complainant and posted the case for evidence, it is submitted. 5. First respondent was served but he did not enter appearance. Heard learned counsel for appellant and learned Public Prosecutor. On going through the proceeding sheet and the order under challenge, it is clear that the accused was acquitted not on the day to which the "hearing" was adjourned or on the day appointed for appearance of accused. Even though in the impugned order, it is recorded that the case was called for "hearing" etc, the proceeding sheet reveals that on 28.8.2008 the case was posted for "evidence" and not for "hearing". It appears that the matter was settled but the accused could not pay the full amount and hence the case was posted for "evidence". Crl.A No.2609 of 2008 3 6. In the meantime, the accused failed to appear and warrant was also issued. On the day on which accused was acquitted the case was posted for production of the accused, pursuant to the warrant issued and also for appearance of the sureties, in the light of the notices issued to them. Such day is not a day falling under Section 256 (1) of the Code. The accused can be acquitted only on the two days specified in Section 256 (1) of the Code as held by me today in P.V Joseph Vs. State of Kerala & Another (Crl.A No.485 of 2007). 7. In the light of the dictum laid down in the said case, the order under challenge cannot be sustained. The order of acquittal is to be set aside 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 Crl.A No.2609 of 2008 4 law. (iii) The appellant shall report before the trial court on 4.10.2010. The appeal is allowed as above. K.HEMA, JUDGE ma