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. 993 of 2008() ----------------------- ST.1477/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOTTAYAM .................... APPELLANT(S): COMPLAINANT ------------------------- SELF EMPLOYEES SERVICE SOCIETY REG.NO.K. 705/97, KOTTATHIL BUILDINGS, NEW MARKET ROAD, KOTTAYAM, REPRESENTED BY ITS GENERAL SECRETARY, SRI.P.P.JOSEPH. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. SRI.DALY JOSEPH, S/O.T.M.JOSEPH, THEKKEKATTU HOUSE, KILIROOR P.O, THIRUVALLA VILLAGE, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.MADHU FOR R1 SRI.SAJI JACOB FOR R1 PUBLIC PROSECUTOR SMT.C.M.CHARISMA. 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.993 of 2008 ---------------------------------------------- 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. The complaint was taken on file and the case was posted to different dates. On 16.2.2008, the complainant was absent. Hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge. 3. According to the appellant, as per the appeal memo, all what happened was a bonafide mistake in noting the posting date by the clerk attached to the office of complainant's counsel. Instead of 16.2.2008, he noted the date as 18.2.2008. The complainant and his counsel were actually ready for filing proof affidavit and there was no neglect from the side of the complainant. The learned Magistrate ought to have adjourned the case, exercising the discretion under Section 256(1) of the Code and as per the settled position, the presence of the complainant Crl.A. NO. 993/08 2 on every posting date need not be insisted upon, it is submitted. 4. Learned counsel for first respondent argued that four chances were given to the complainant for filing proof affidavit, in lieu of chief examination and the case was posted for evidence on four occasions. But, there is deliberate failure on the part of complainant to file proof affidavit and the complainant was absent also on the day on which the accused was acquitted. Hence, there is no reason to interfere with the order under challenge, it is submitted. 5. On going through the order under challenge itself, it is clear that the case was posted for “evidence” on the date of impugned order. An accused can be acquitted only on the two types of days specified in Section 256(1) of the Code and such days do not include the day to which the case was posted for evidence. In the light of the decision reported in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) an accused cannot be acquitted on the day on which the case is posted for evidence. Hence, the order under challenge cannot be sustained since it is illegal and without jurisdiction. Hence, the following order is passed : (i) The impugned order is set aside. Crl.A. NO. 993/08 3 (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