IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 CRL.A.No. 1356 of 2007() ------------------------ CC.595/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... APPELLANT(S): -------------- K.H.RAMA SHENOI, S/O.HANUMANTH SHENOI, VIII/525, T.D.SCHOOL ROAD, MATTANCHERRY, KOCHI-2. BY ADV. SRI.GEORGE JOSEPH PULIMOOTTIL SMT.SREEJA SOHAN.K. RESPONDENT(S): --------------- 1. C.L.NOUSHAD, S/O.C.L.LATHEEF, CHERIYAMALOTH PARAMBIL, DOOR NO.6/855, MATTANCHERRY. 2. STATE OF KERALA, RPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.1356 of 2007 ----------------------------------------------- Dated 22nd October, 2010. J U D G M E N T This appeal arises from an order of acquittal passed under Section 256(1) of the Criminal Procedure Code (for short, 'the Code'). 2. The appellant filed a complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file and summons was issued to the accused. The accused was absent and he applied for excusing his absence. The case adjourned by notification on several dates and finally on 18.5.2007, since the complainant was absent, the accused was acquitted under Section 256(1) of the Code. 3. Learned counsel for the appellant submitted that the case was posted on 18.5.2007, for appearance of the accused. The presence of the appellant was not necessary. Therefore, the order of acquittal was not warranted. The non- appearance of the appellant was not wilful, it is submitted. 4. Notice was served in this appeal on the first respondent, but he did not enter appearance. On going Crl.Appeal No.1356/07 2 through the proceeding sheet, Annexure A and the impugned order, I find that the order under challenge is unsustainable, for the following reasons : It is stated in the impugned order that the case was called for hearing to the date on which the accused was acquitted. But, the proceeding sheet shows that the case was not posted for “hearing” to that day. The necessity for hearing did not arise, since the accused did not appear, nor his plea was recorded. 5. It is only after recording of the plea that a posting for hearing under Section 256(1) of the Code will arise. Therefore, evidently, there is a mistake in the order. An order of acquittal can be passed under Section 256(1) of the Code only on the two days specified in the section. Since the order is passed not on either of those days, the order under challenge is unsustainable. Hence, 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. Crl.Appeal No.1356/07 3 (iii) The parties shall appear before the trial court on 29.11.2010. The appeal is allowed. K.HEMA, JUDGE. tgs