IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 851 of 2007() ----------------------- CC.874/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... APPELLANT(S): COMPLAINANT ------------------------- A.P.VARGHESE, KIZHAKKE ACHANARU VEEDU, KADAPRAMANNAR MURI, NIRANAM VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): ACCUSED ---------------------- 1. THOMASKUTTY, PERUTHELCHIRA VEEDU, PARUKKARA MURI, MAVELIKKARA TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.851 of 2007 ----------------------------------------------- Dated 27th January, 2011. 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. 2. The appellant is the complainant. He filed a complaint against first respondent before Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file in 2003 and summons was issued to the accused. The accused did not appear before the court. In the meantime, the case was transferred to another Magistrate Court, as per order of the learned Chief Judicial Magistrate. When the case was called in the transferee court, the complainant was absent and no steps were taken to procure the presence of the accused. Therefore, accused was acquitted as per the impugned order which is extracted below : “Complainant absent, no representation. Even after giving specific directions and 6 postings neither the complainant nor his counsel turned up before the court to take steps to procure the presence of the accused. Hence in the absence of the complainant the complaint could not be proceeded with. Therefore, the accused is acquitted u/s. 256(1) Cr.P.C.” 3. Heard learned counsel for appellant. Though first respondent was served, he has not entered appearance. Crl.Appeal No.851/07 2 Learned counsel for appellant submitted that appellant did not get any notice from the court directing him to appear before the transferee court. Though first respondent was served, there is no representation for him. 4. On going through records, I find that two reports are seen filed by both the courts before this Court and it is clear from the reports that notice was not given to appellant for his appearance in court concerned, after transfer. In the above circumstances, the acquittal under Section 256(1) of the Code cannot be sustained. 5. It is also relevant to note that the accused was acquitted even prior to the appearance of the accused and the order of acquittal was passed not on either of the days specified in Section 256 (1) of the Code. Hence, the order under challenge is unsustainable. In the result, the following order is passed : (i) The impugned order is set aside. (ii) The court below shall take the case on file and Crl.Appeal No.851/07 3 dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs