IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 CRL.A.No. 223 of 2010() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.77/2010 Dated 28/01/2010 ST.732/2008 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ S.SREEKUMARAN, AGED 45 YEARS, S/O.SUKESA PANICKER, "VIDYA HOUSE", T.C.NO.23/1276, MELARANNOOR, KARAMANA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. C.F.SANTHOSH KUMAR, AGED 50 YEARS, S/O.CHELLAN, "JEES VILLA", U.R.R.A.15, NEAR B.S.N.L.OFFICE, UPPALAM ROAD, G.P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR SRI.D.KISHORE FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.223 OF 2010 ----------------------------------- Dated 7th January, 2011 J U D G M E N T Appeal is filed against order of acquittal passed under section 256(1) of the Code. 2. Appellant filed a complaint against first respondent alleging offence under section 138 of N.I Act. Case was taken on file as S.T.732/2008 by Additional Chief Judicial Magistrate. Accused did not appear, though summons was issued. Non- bailable warrants were issued against him and steps were ordered under section 82 and 83 of Cr.P.C. and the case was posted to 20.10.2009. But on that day complainant was absent and there was no representation. Hence the accused was acquitted under section 256(1) of the Code. 3. Heard both sides. It is clear from the facts stated above that accused was acquitted not on the two days specified in section 256(1) of the Code. Steps under section 82 and 83 of Cr.P.C were pending on which day accused was acquitted. Accused was not acquitted on the day to which the case was Crl.A. No.223/10 2 posted for appearance of the accused or any day subsequently to which case is posted for hearing. Since the order of acquittal is passed either of the two days, impugned order cannot be legally sustained. An accused against whom warrant is issued shall not be acquitted under section 256(1) of the Code (vide 2010 (2) KLT 735 Joy Abraham Vs. Jiju Thomas and another, 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another). Hence the following order is passed: (i) The order under challenge is set aside. (ii) The trial court is directed to take the case on file and dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 24.1.2011. The appeal is allowed. K. HEMA, JUDGE. Sou.