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. 513 of 2007() ----------------------- ST.2874/2003 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... APPELLANT(S): COMPLAINANT ------------------------- V.VIJAYAN, S/O.NARAYANAN NAIR, KOTHAMANGALAM P.O., FEROKE COLLEGE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): ACCUSED ---------------------- 1. KURIAN JOHN, S/O.JOHN, SENIOR SUPERINTENDENT, OFFICE OF REGIONAL JOINT DIRECTORS OF MUNICIPALITIES, KOZHIKODE. ADDL.R2 IMPLEADED : 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (IMPLEADED AS PER ORDER DT. 30.3.2007 IN CRL.M.A.NO.3787/07) ADV. SRI.K.D.BABU FOR R1 PUBLIC PROSECUTOR SRI.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.513 of 2007 ---------------------------------------------- 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. The appellant is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. On 30.10.2004, the complainant was absent and there was no representation also. The accused was also absent. Hence, the accused was acquitted as per the impugned order, which is extracted below : “Complainant absent. No representation. Accused absent. Complaint dismissed. Accused is acquitted u/s 256(1) Cr.P.C.” 3. According to appellant, the case was not called on 26.10.2004, since the case bundle was misplaced from the court. The appellant was regularly appearing in court and he was vigilant in conducting the case. Since the case was not called on 26.10.2004, the appellant contacted the bench clerk, after rising of the court. He was informed by the bench clerk that the case file was misplaced and that after locating the bundle, the case will Crl.A. NO. 513/07 2 be posted to next month. On 1.11.2004, he again approached the bench clerk when he was informed that the case bundle was located on the same day and the case was called on 27.10.2004 and 30.10.2004 and since there was no representation, the accused was acquitted. 4. Learned counsel for first respondent submitted that there were three postings and on all the three postings, the complainant did not appear and therefore, there is no ground to interfere with the order of acquittal. 5. On hearing both sides and on going through the order under challenge, I find that the order is not consistent with the provisions contained in Section 256(1) of the Code. The mere non-appearance of the complainant or failure to make representation will not be sufficient for the court to acquit an accused under Section 256(1). The court must ensure that the day on which the order was passed is either of the two types of days specified in Section 256(1) of the Code. 6. It is not clear from the impugned order as to whether the the said order was passed on the two types of days referred to in the said section. Hence, there is clear non- Crl.A. NO. 513/07 3 application of mind on the part of the learned Magistrate in acquitting the accused, without adverting to the requirements contained in Section 256(1) of the Code. It is also relevant to note that a form is prescribed under the Criminal Rules of Practice as form no.11, for passing an order under Section 256(1). But, the order is not passed under form no.11 and there is nothing in the impugned order to show that the accused was acquitted on either of the two days specified in Section 256(1) of the Code. 7. The court has no power to acquit the accused on any date to which the case is posted for evidence. Only on the day appointed for “appearance” of accused or the day to which the case is adjourned for “hearing” under Section 254(1) of the Code, the court can acquit the accused for non-appearance of complainant. The court does not appear to have applied its mind to this fact. [vide also P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007)]. The order under challenge is not sustainable. 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 Crl.A. NO. 513/07 4 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