IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 CRL.A.No. 978 of 2009() ----------------------- ST.206/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ ALDO PIOUS, SHA COTTAGE, NEAR RAILWAY GATE, KAZHAKKOOTTAM, THIRUVANANTHAPURAM. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. SOORAJLAL, IMPEIAL SYSTEMS, ADOOR TOWERS, CENTRAL ADOOR, PIN-691 527. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.THAMBAN FOR R1 SRI.R.REJI FOR R1 SRI.B.BIPIN FOR R1 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.978 of 2009 ---------------------------------------------- Dated 8th 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 Criminal Procedure Code(for short, 'the Code'). 2. The appellant is the complaint, who filed a complaint against first respondent alleging offence under Section 138 of the Negotiable Instruments Act. The complainant was absent when the case was posted for evidence twice and hence, the application filed by his counsel was dismissed and the accused was acquitted under Section 256(1) of the Code. 3. Learned counsel for appellant submitted that the complaint was filed as early as on 12.1.2007, and summons was issued to the accused, but he did not appear on summons. Later, non-bailable warrants were issued repeatedly for procuring his presence. After his presence was procured, the case was posted from time to time. On 5.3.2009, the complainant was absent and his counsel filed a petition for excusing his absence, but the lower court dismissed the petition and acquitted the accused under CRA NO.978/09 2 Section 256(1). 4. Learned counsel for appellant also argued that the benefit of Section 256(1) cannot be extended to an accused, who did not appear on summons. Warrants were issued against him and hence, in the light of the decision reported in Joy Abraham v. Jiju Thomas and another (2010(2) KHC 357), the order under challenge is illegal. The appellant was vigilantly prosecuting the case, ever since 2007, over a period of more than two years, but only because the complainant was absent on the date on which the impugned order was passed, the accused was acquitted. 5. Learned counsel for first respondent/accused argued that the case was posted for evidence twice. In spite of this, the complainant did not appear on 5.3.2009, the day on which the case was posted for evidence. He was protracting the trial and hence, there is no reason to interfere with the order of acquittal, it is contended. 6. On hearing both sides and on going through the order under challenge, it is clear that the accused was acquitted on the date on which the case was posted for “evidence”. In the CRA NO.978/09 3 light of the decision reported in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) an accused cannot be acquitted on the day on which the case is posted for evidence. An accused can be acquitted under Section 256(1) for non-appearance of the complainant only on two types of days specifically stated in the said section. The day on which the accused was acquitted is not one of such days. Hence, the acquittal is not only illegal, but, is without jurisdiction. In the above circumstances, 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 12.10.2010. The appeal is disposed of as above. K.HEMA, JUDGE. tgs