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. 1848 of 2009() ------------------------ CC.120/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): -------------- GEORGE, AGED 47 YEARS, S/O.CHAMBAKASSERY DEVASSY, THANISSERY P.O., THANISSERY DESOM, KARALAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT(S): --------------- 1. SUNIL KUMAR, S/O.ALUKKAPARAMBIL ARAVINDAKSHAN, PADIYOOR VILLAGE, DESOM, MUKUNDAPURAM TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.T.A.SHAJI FOR R1 PUBLIC PROSECUTOR 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.1848 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 first 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 2.2.2009, 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 though the complainant was absent on the day on which the impugned order was passed, he was represented by his counsel. In the order under challenge, it is not mentioned that the complainant was represented. The court ought to have granted adjournment, instead of acquitting the accused, since he was represented by his counsel, it is submitted. 4. The first respondent was served, but there is no Crl.A. NO. 1848/09 2 representation for him today. On going through the order under challenge, it is clear that the case was posted for evidence on the day on which the accused was acquitted under Section 256(1) of the Code. A plain reading of Section 256(1) shows that an accused can be acquitted under Section 256(1) of the Code only on the two days specifically referred to in the said section. 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. I have held in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) that the Magistrate shall not acquit the accused on the day to which the case is posted for evidence. Hence, the order under challenge is not sustainable in Crl.A. NO. 1848/09 3 law and 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