IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 CRL.A.No. 303 of 2010() ----------------------- ST.173/2009 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,ETTUMANUR .................... APPELLANT(S): PETITIONER/COPMPLAIANT. ------------------------------------- M.C.SULOCHANAN, S/O.CHELLAPPAN, MANNOOSSERIL HOUSE, MAMALAGIRI P.O., KOTTAYAM. BY ADV. SRI.A.K.HARIDAS RESPONDENT(S): ACCUSED/STATE. ----------------------------- 1. K.K.BIJU, KANIKKAL HOUSE, NEENDOOR P.O., KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. SRI.SUBHASH CYRIAC FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.303 of 2010 ---------------------------------------------- Dated 16th 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. The case was taken on file and summons was issued to the accused. Since the accused was absent, non-bailable warrant was issued. The case was posted thereafter, to different dates. On 3.8.2009, the case was advanced on application by the accused, and non-bailable warrant was recalled. Later, the case was transferred to another court. Before that court, the complainant did not appear. On 14.12.2009, the complainant was absent and the accused was acquitted, as per the impugned order. 3. Learned counsel for appellant submitted that a mistake occurred in noting the date and hence, the complainant happened to be absent. The complainant was present before the court, in which the case was pending originally. It is only after the Crl.A. NO. 303/10 2 transfer of the case that he did not appear. This happened only because of an inadvertent mistake in noting the date, it is submitted. 4. Learned counsel for accused/first respondent submitted that as per the averments in the appeal memorandum, the complainant had made enquiries with the clerk after 29.9.2009 and he informed him that the letter will be sent. If that be the case, there was every reason to know the correct date since the case was posted on 26.9.2009. But, there was not even representation on behalf of complainant, on more than once, it is submitted. 5. On hearing both sides and on going through the proceeding sheet and the impugned order, I find that though the court observed in the order under challenge that the case was called on for “hearing” on the date on which the accused was acquitted under Section 256(1) of the Code, the proceeding sheet does not reveal that the case was posted for “hearing” to such day. It also appears that no necessity arose for posting the case for “hearing”, on the crucial day, viz., 14.12.2009. 6. It is relevant to note that the accused filed an application for advancing the case on a date to which there was Crl.A. NO. 303/10 3 no posting and got the posting advanced and non-bailable warrant was recalled. He also filed exemption petition under Section 205 of the Code of Criminal Procedure and it was allowed. The plea was recorded and the case was posted for evidence. All these happened on 3.8.2009, in the absence of the complainant, since no notice was given to the complainant while advancing hearing. 7. From the order passed on 3.8.2009, it is clear that the case was posted for “evidence”. 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. 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. 8. 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 Crl.A. NO. 303/10 4 Magistrate shall not acquit the accused on the day to which the case is posted for evidence. Hence, the order under challenge is unsustainable. 9. 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 25.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs