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. 1564 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.906/2007 Dated 04/10/2007 CC.269/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PAYYANNUR ............................................................ APPELLANT / COMPLAINANT : ---------------------------------------- KURIAKOSE THUNDIYIL, AGED 36 YEARS, S/O.MATHAI, MALANKADAVU, P.O. PALAVAYAL, CHERPUZHA VIA. BY ADV. SRI. M.V. AMARESAN RESPONDENTS / ACCUSED : --------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. TOMY THOMAS, AGED 38 YEARS, S/O.THOMAS, KIZHAKKE KOZHUVANAL, THOTTENCHAL, P.O. KANNIVAYAL. R1 BY PUBLIC PROSECUTOR SRI. VENUGOPAL 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. 1564 of of 2008 -------------------------- Dated this the 3rd September, 2010 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 ("Code" for short), in a case involving of offence under Section 138 of Negotiable Instruments Act. 2. Appellant is the complainant. The complaint was taken on file under Section 138 of the Negotiable Instruments Act and sworn statement was recorded on 29.4.1999. Summons was issued and accused appeared. Thereafter, the case was posted for evidence from time to time over a period of about two years. On 1.1.2002, as per the proceeding sheet the court passed the following order. "Both sides absent. Today case is posted for evidence as no further time. Complainant filed a petition for condoning his absence. Reason mentioned is not convincing . Hence complaint dismissed for default. Accused acquitted under Section 256, Cr.P.C." 3. Learned counsel for the appellant submitted that Crl.A No. 1564 of of 2008 2 a petition was filed by the appellant's counsel for condoning his absence and this is not a case where the complainant was not represented. The complainant was represented by the counsel. Since the counsel was present and the complainant can deemed to be represented, the accused ought not to have been acquitted on the ground the complainant failed to get ready of adducing evidence. 4. There is no representation for the 2nd respondent. He has not entered appearance though notice is served. Heard. The impugned order dated 1.1.02 which is produced along with this appeal reads as follows: The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader the accused is acquitted under Section 256, Criminal Procedure Code. 5. A reading of the proceeding sheet and the impugned order will reveal that the accused was acquitted on the day to which the case is posted for "evidence". A plain reading of Section 256 (1) will show that accused can be acquitted under Section 256 (1) only on the two days specified in the said provision. The day posted "for Crl.A No. 1564 of of 2008 3 evidence" is not included in Section 256 (1) of the Code. The two days mentioned in Section 256 (1) are the date of appearance of accused or the subsequent day to which the case is adjourned for hearing. 6. Going by the language in Section 256 (1) of the Code, order under challenge is illegal and not consistent with the provision contained in Section 256 (1) of the Code. It is also relevant to note that in the impugned order which is issued in Form No.11 of the Criminal Rules of Practice, it is recorded " that the case was called on for hearing today to which case has been posted" The proceeding sheet would show that the case was not posted for hearing to that day. I have already held today in P.V.Joseph Vs. State of Kerala and Another [ Crl.A No.485 of 2007] that an accused cannot be acquitted on any day to which the case is posted for evidence. In such circumstances, the order under challenge is not sustainable, illegal and it is liable to be set aside. Hence the following order is passed: (i) The order under challenge in this appeal is set aside. Crl.A No. 1564 of of 2008 4 (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 as above. K.HEMA, JUDGE ma Crl.A No. 1564 of of 2008 5 K.HEMA, JUDGE ma K.HEMA, JUDGE ma