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. 1293 of 2009() ------------------------ CC.956/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ PRASAD.K., AGED 53 YEARS, S/O.CHERULIL PARAMU NAIR, 'KRISHNA VIHAR'. NADAVARAMBA, IRINJALAKUDA, NOW WORKING AT GULF AIR P.B.NO.31749, ALKHOBAR-31952, SAUDI ARABIA. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. SHAJI JOHANAN, AGED AROUND 40 YEARS, S/O.YOHANAN, VAISHNAVI DEEP, A1, ROOM 301, SECTOR-5, NEW PANVEL, MAHARASHTRA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.FEBIN J.VELUKARAN FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. 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.1293 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 filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. On 17.3.2009, the complainant was absent. Two chances were given to file proof affidavit and the case was posted as last chance for adducing evidence. The complainant did not file any proof affidavit and hence, accused was acquitted under Section 256(1) of the Code. 3. Learned counsel for the appellant submitted that the appellant was vigilant in prosecuting the case. The accused did not appear, in spite of receipt of summons and hence, warrants were issued. The case was pending for over a period of three years. On the date on which the accused was acquitted, complainant was absent, but a petition was filed to excuse his absence. The complainant's absence was not wilful. But the court acquitted the accused only because the complainant was absent, which cannot be justified, it is submitted. 4. The first respondent entered appearance through CRA NO.1293/09 2 counsel. Learned counsel for first respondent argued that the averments in the appeal memorandum regarding change of power of attorney etc. are not correct. On hearing both sides and on going through the order under challenge, I am satisfied that the case was posted for evidence on the day on which the accused was acquitted. 5. On a reading of Section 256(1) of the Code, it is clear that the court can acquit the accused only on the two types of days specified therein. Such two days do not include, a day posted for “evidence”. In P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007), this Court held that an accused cannot be acquitted, invoking Section 256 (1), on the day to which the case is posted for evidence. Hence, the order under challenge is not legal and it is liable to be set aside. In the result, 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 CRA NO.1293/09 3 13.10.2010. The appeal is allowed as above. K.HEMA, JUDGE. tgs