IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 CRL.A.No. 659 of 2007() ----------------------- CC.1829/2004 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... APPELLANT(S): -------------- ALWAYE CHITTIES AND FINANCE PVT. LTD, PRASAD BUILDINGS, BRIDGE ROAD, ALUVA-1, REPRESENTED BY ITS MANAGER, M.S.RAGHAVAN. BY ADV. SRI.G.G.MANOJ RESPONDENT(S): --------------- 1. S.DHARMARAJA IYYER, SREE LAKSHMI, H.NO.280,C/VI,THOTTAKKATTUKARA. 2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.659 of 2007 ----------------------------------------------- Dated 28th 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 ('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 on 22.6.2004 and it was taken on file in the year 2004. Thereafter, even before issuing summons to the accused, the accused was acquitted under Section 256(1) of the Code, since neither the complainant nor his counsel was present. 3. Learned counsel for appellant submitted that accused was acquitted even before summons was issued. The complainant was not present due to reasons beyond his control. He also produced for perusal, a certified copy of the proceeding sheet. On hearing appellant's counsel and on going through the impugned order and the proceeding sheet, it is clear that Crl.Appeal No.659/07 2 even prior to the appearance of accused, the accused was acquitted under Section 256(1) of the Code. On a reading of Section 256(1) of the Code itself, it is clear that such an order of acquittal is not sustainable. 4. As per Section 256(1), the accused can be acquitted under the said section, only on the day to which case is posted for appearance of accused, in case summons is issued or on the day to which the case is posted for hearing of prosecution under Section 254(1). The order under challenge being passed prior to such days and not on either of the days, the order of acquittal is not sustainable. 5. If steps are not taken by complainant, the court is not empowered to acquit the accused, under Section 256(1) of the Code. [vide P.V.Joseph v. State of Kerala (2010(4) KLT 697), Joy Abraham v. Jiju Thomas (2010(2) KLT 735)]. In the above circumstances, the order under challenge is unsustainable 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 Crl.Appeal No.659/07 3 dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 15.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs