IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 CRL.A.No. 1043 of 2004() ------------------------ CC.510/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT-V, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT ------------------------- M/S.KERALA STATE ENGINEERING & TRANSPORT DEVELOPMENT CO-OPERATIVIE SOCIETY LTD.NO.4410, T.C.P.W.S.BUILDING, G.P.O.LANE, TVM. REP. BY ITS MANAGING DIRECTOR'S POWER OF ATTORNEY HOLDER SRI. ANIL KUMAR, S/O.N.GOPI, RESIDIDNG AT T.C.15/2030, WOMENS COLLEGE LANE, VAZHUTHACAUD, TVM. BY ADV. SRI.R.T.PRADEEP RESPONDENT(S): ACCUSED & STATE. ------------------------------- 1. VARADARAJAN NAIR, S/O.MADHAVAN PILLAI, PROPRIETOR, ANAND TYRE WORKS, ARUN MANDIR, MARUTHOOR, VATTAPPARA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1043 of 2004 ----------------------------------------------- Dated 10th February, 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 ('the Code', for short). 2. The appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The complaint was filed as early as in 2002. But, in spite of lapse of two years, the presence of accused could not be procured. Non-bailable warrant was issued against him. The warrant was returned un-executed. Steps were not taken by complainant. On 28.2.2004, the complainant was absent and there was no representation. Hence, accused was acquitted under Section 256(1) of the Code. 3. Heard counsel for appellant/complainant. The first respondent was absent. Though notice was sent to first respondent by this Court, it was returned unserved. Since impugned order was passed prior to his appearance in trial court, notice to first respondent was dispensed with. From the impugned order itself, it is clear that though summons was Crl.Appeal No.1043/04 2 issued to first respondent, he did not appear in court. Hence, non-bailable warrants were issued and warrant was returned unexecuted. On the day on which first respondent was acquitted, warrant was returned unexecuted. Such day is not either of the two days specified in Section 256(1) of the Code and hence, in the light of the dictum laid down in Joy Abraham v. Jiju Thomas (2010(2) KLT 735), the order of acquittal cannot be sustained. 4. It is needless to say that in cases in which complainant fails to take steps for issuing process, no order can be passed under Section 256(1) of the Code. 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 appellant shall appear before the trial court on 21.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs