IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 CRL.A.No. 528 of 2008() ----------------------- ST.50/2005 of JFMC – IX, TRIVANDRUM. .................... APPELLANT(S): COMPLAINANT ------------------------- G.K. RAJASEKHAR, SON OF G.GOVINDAN DT CPT STAFF QUARTERS, VATTIYOORKAVU THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENT(S): ACCUSED ---------------------- 1. J. BENJAMIN, LAST GRADE SERVANT GOVERNMENT AYURVEDA HOSPITAL FOR WOMEN AND CHILDREN, POOJAPPURA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.P.V.ANIL FOR R1 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.528 of 2008 ---------------------------------------------- Dated 12th October, 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. The complaint was taken on file in the year 2005 and after two years, the accused was acquitted as per impugned order dated 15.9.2007 on the ground that the complainant is absent. Hence, this appeal. 3. Learned counsel for the appellant submitted that the case was originally posted to 3.9.2007 for evidence and then adjourned to 5.9.2007. But, on that day, there was no sitting and therefore, the case was adjourned by notification to 22.9.2007. But, prior to this date, the case was preponed to 15.9.2007 and on that day, the accused was acquitted on the ground that the complainant was absent and there was no representation. The entries in the case diary will reveal the truth, it is submitted. 4. Though first respondent was served and he entered Crl.A. NO.528/08 2 appearance through counsel, there was no representation for him at the time of hearing. On going through the impugned order itself, it is clear that the case was filed as early as in 2005 and the accused was acquitted on the day to which the case was posted for evidence. The trial court observed that in spite of specific direction to appear to furnish evidence, the complainant failed to appear. 5. 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. 6. 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 shall not acquit the accused on the day to which the Crl.A. NO.528/08 3 case is posted for evidence. Hence, the order under challenge is liable to be set aside and I do so. 7. 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 25.11.2010. The appeal is allowed. K.HEMA, JUDGE. tgs