IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 CRL.A.No. 201 of 2010() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.73/2010 Dated 27/01/2010 ST.1675/2007 of JUDICIAL FIRST CLASS MAGISTRATE-IV, NEYYATTINKARA .................... APPELLANT(S): COMPLAINANT: ------------------------------------------------- MURUGAN, S/O.BALAKRISHNA PILLAI, THOPIL BUNGLOW, THEKKEKOTTARAM, FORT WARD, KADAVATTARAM, NEYYATTINKARA. BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENT(S): ACCUSED AND STATE: ------------------------------------------------------------------ 1. SANJAYA KUMAR, NEDUMPANIKONAM KIZHAKKEKARA PUTHEN VEEDU, KOTTAMPALLI, MARANALLOOR VILLAGE, WORKING AS DRIVER AR CAMP PCT 3092 A, PULINKUDI RURAL. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.SUDHEER FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.201 OF 2010 ----------------------------------- Dated this the 10th day of November, 2010 J U D G M E N T This appeal arises from the order of acquittal u/s 256(1) of Cr.P.C. 2. The appellant filed complaint against first respondent alleging offence u/s. 138 of Negotiable Instruments Act. The case was taken on file and summons was issued to accused. The accused entered appearance and he pleaded not guilty, and the case was posted for evidence to different dates. The case was posted for evidence as last chance to different dates. On 23.11.2009 the complainant was absent and he did not turn up for evidence. Therefore, the Court passed the following order: “Complainant applied. Accused present. Complainant repeatedly absent. He has not turned up for giving evidence, despite repeated directions and providing so many last chances. Application of the complainant rejected. Accused is acquitted u/s.256(1)Cr.P.C.” Crl.A. No.201/10 2 3. According to learned counsel for appellant, appellant was laid up with jaundice and an application was also filed by his counsel for excusing absence. But the petition was dismissed and accused was acquitted. The court ought to have grant adjournment, instead of acquitting the accused, it is contended. There is no attempt on the part of the appellant to protract the proceedings and he ought to have been given an opportunity, it is submitted. 4. Learned counsel for the first respondent was also heard. A reading of Section 256(1) of the Code reveals that if the complainant is absent, the Magistrate can acquit the accused on the two days specified therein. 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) of the Code does not permit the court to acquit the accused on any day other than the two days specified in the section. Necessarily, the court has no power to acquit the accused on the day to which the case is posted for evidence. I have held in in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) that the Magistrate Crl.A. No.201/10 3 shall not acquit the accused on the day to which the case is posted for evidence. 6. On hearing both sides and on going the proceedings sheet as well as the order under challenge, I find that the accused was acquitted on the date on which case was posted for evidence. Such acquittal is illegal in the light of the above decision 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 01.12.2010. K. HEMA, JUDGE. Sou.