IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 CRL.A.No. 2210 of 2008() --------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.294/2008 Dated 29/08/2008 CC.369/2006 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM ..................................................................................................................................... APPELLANT / COMPLAINANT : ----------------------------------------- G.GIRISHKUMAR, T.C.NO.23/594, VALIYASALA, THIRUVANANTHAPURAM. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENTS / ACCUSED & STATE : ----------------------------------------------------- 1. JAYANTHY, DESK CLEANER, CANTEEN SECTION, ALL INDIA RADIO, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. STAT OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. VENUGOPAL R1 BY ADV. SRI. G. SUDHEER THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn K. HEMA, J. ------------------------- Crl.A No.2210 of 2008 -------------------------- Dated this the 3rd September, 2010 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. 2. The appellant is the complainant. He filed a complaint against the 1st respondent herein alleging offence under Section 138 of the Negotiable Instruments Act. The accused entered appearance through counsel on issuance of summons and the case was posted for his appearance. The accused appeared and bail was granted and the case was posted for "evidence" to 27.1.2007. On that day, the complainant was absent and there was no representation. Therefore, the accused was acquitted under Section 256 (1) of the Code. 3. According to the appellant, the complainant was vigilant in prosecuting the case from the very inception. The trial court, therefore, ought to have adjourned the case by exercising its discretion in Section 256 (1) of the Code since large amount is involved in this case. Crl.A No.2210 of 2008 2 4. There was no representation for accused/1st respondent. On hearing learned counsel for appellant and learned Public Prosecutor and on going through the proceeding sheet produced along with the appeal, it is clear that the accused was acquitted on the day to which the case was posted for "evidence". As per Section 256 (1) of the Code, accused can be acquitted only on the two types of days specified therein. Such days do not include the day to which the case is posted for "evidence". I have already held in P.V Joseph Vs. State of Kerala & Another (Crl.A No.485 of 2007) that an accused cannot be acquitted under Section 256 (1) of the Code on a day to which the case is posted for "evidence". Such an order will be illegal and not consistent with the provision contained in Section 256 (1) of the Code. 5. Applying the same dictum in the above case, I find that the order under challenge in this appeal is not sustainable. The case is to be remanded for fresh consideration and disposal, in accordance with law. Hence the following order is passed. Crl.A No.2210 of 2008 3 (i) The order under challenge in this appeal is set aside. (ii) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law. (iii) The appellant shall report before the trial court on 4.10.2010. The appeal is allowed as above. K.HEMA, JUDGE ma