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. 1425 of 2004() ------------------------ CC.614/2001 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD .................... APPELLANT(S): COMPLAINANT ------------------------- VINODKUMAR.K., AGED 40 YEARS, S/O.LATE K.T.KESAVAN, NOCHULLY HOUSE, NOCHULLY P.O., PALAKKAD REPRESENTING DHANASREE CHITS AND FINANCE, R.S.NAIDU BUILDINGS, KUNNATHURMEDU, PALAKKAD. BY ADV. SRI.K.P.BALAGOPAL RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. R.BIJU, S/O.RAMAKRISHNAN, ELECTRONICS AGENCIES, G.B. ROAD, PALAKKAD. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.A.R.GANGADAS FOR R1 PUBLIC PROSECUTOR SMT.C.M.CHARISMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1425 of 2004 ---------------------------------------------- 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. Appellant is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act of the Negotiable Instruments Act. The complaint was taken on file as early as in 2001 and during the pendency of the case, the complainant was absent on 29.6.2004 and hence, the accused was acquitted under Section 256(1) of the Code, as per the order extracted below : “The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader, the accused is acquitted under Section 256(1) Criminal Procedure Code.” The above order is under challenge in this appeal. 3. Learned counsel for appellant submitted that on 29.6.2004, though the complainant was absent, a petition was filed on his behalf to excuse his absence. On the previous posting, the complainant was present and the case was posted for Crl.A. NO. 1425/04 2 evidence to 24.6.2004. But, the accused sought time for settlement and the case was posted to 29.6.2004. But, the lower court acquitted the accused, even though a petition was filed by the counsel, who represented the complainant, it is submitted. 4. The first respondent is served in this appeal. He entered appearance through counsel, but no arguments are advanced on his behalf. On hearing learned counsel for the appellant and on going through the order under challenge, I am satisfied that the accused was acquitted not on the two types of days specified in Section 256(1) of the Code, ie., (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. The accused was acquitted on the day to which the case was posted for evidence. The trial court has no jurisdiction to acquit the accused u/s.256(1) of the Code on the day on which the case is posted for evidence. In the light of the dictum laid down in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) the Magistrate shall not acquit the accused on the day to which the case is posted for Crl.A. NO. 1425/04 3 evidence. The order of acquittal passed under Section 256(1) of the Code cannot be sustained. Hence, the following order is passed : In the above circumstances, 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 18.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs