IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 1867 of 2010() ------------------------ ST.34/2009 of JUDL. MAGISTRATE OF FIRST CLASS II, CHENGANACHERRY .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ ROSAMMA SABU, VALIYAVEETTIL HOUSE, RESIDING AT BEENA MANZIL, HIDAYATHU NAGAR, PUZHAVATHU, CHANGANACHERRY. BY ADV. SRI.JOHN VARGHESE SRI.P.M.JOSEPH RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. AJITHA RAHIM, PUTHUCHIRA PUTHUPARAMBIL, CHEERANCHIRA.P.O., KUNNAMTHANAM, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.NOUSHAD THOTTATHIL FOR R1 SRI.NOORJI NOUSHAD FOR R1 PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1867 of 2010 ----------------------------------------------- Dated 27th January, 2011. J U D G M E N T This appeal arises from an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure('the Code', for short). 2. The appellant is the complainant. She filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file in 2009. The accused entered appearance and pleaded not guilty. Thereafter, warrant was pending against accused, since she did not appear. On one of the posting dates, appellant was absent and hence, the court acquitted the accused stating that complainant was absent even after specific direction. 3. Heard learned counsel for appellant. There was no representation for first respondent. Learned counsel for appellant submitted that appellant's counsel had filed a petition before the trial court for excusing his absence on that date, but it was rejected without any reason. It is also pointed out that on the day on which the accused was acquitted, accused entered Crl.Appeal No.1867/10 2 appearance through counsel and filed a petition to recall the warrant. The presence of accused was procured only after taking coercive steps. In the above circumstances, the trial court ought not to have acquitted the accused, it is submitted. 4. The accused was acquitted on the same day on which he appeared after issuance of non-bailable warrant, it is submitted. Since accused was absent and warrant was pending, appellant bonafide believed that her presence was not required before the court on the date on which the case ended in acquittal, it is further submitted. 5. A reading of Section 256 of the Code shows that the order of acquittal under Section 256(1) of the Code can be passed only on either of the two days stated in the said section. ie., (1) day of “appearance” of accused on summons (2) day to which case is posted for “hearing”. In cases in which warrant is issued and the case is posted for “production” of accused, Section 256(1) cannot be invoked for acquitting the accused, as held by this Court in Joy Abraham v. Jiju Thomas (2010(2) Crl.Appeal No.1867/10 3 KLT 735). Hence, the order under challenge is unsustainable. 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 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs