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. 2081 of 2009() ------------------------ CC.50/2008 OF SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASE), KOZHIKODE DT. 22.6.2009. .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ RABEESH KUMAR P.N., S/O.PADMANABHAN, AGED 20 YEARS, PINDAM NEEKIYIL P.O., KANNAIDPOYIL, BALUSSERY, KOZHIKODE. BY ADV. SRI.JOSEPH A.VADAKKEL SRI.GEORGE KARITHANAM VARGHESE SRI.JOSE KURIAKOSE (VILANGATTIL) SRI.V.J.JOHN RESPONDENT(S): ACCUSED ---------------------- 1. K.P.MOHANAN, KALATHINGAL PARAMBIL, AVILORA P.O., KODUVALLY VIA., KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 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.2081 of 2009 ---------------------------------------------- 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. The appellant is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. On 22.6.2009, the complainant was absent and there was no representation also. Hence, the accused was acquitted as per the impugned order, which is extracted below : “This is a complaint filed alleging offence punishable u/s. 138 of the Negotiable Instruments Act. 2. Today also the complainant is absent. No representation. Hence, the accused is acquitted u/s.256 of Cr.P.C.” The above order is under challenge in this appeal. 3. Notice was served on 1st respondent but he did not enter appearance. Hence, learned counsel for appellant was heard. According to the learned counsel for appellant, the case was not posted for evidence or for recording any statement. Therefore, the court ought to have granted an adjournment. A Crl.A. NO.2081/09 2 petition was entrusted with the junior counsel, but he got held up in a traffic block and he could not reach the court in time. 4. On considering the various grounds raised in the appeal memo and on going through the order under challenge, I find that the trial court acquitted the accused for the reason that the complainant is absent and there is no representation. But, there is nothing in the order to show that it was passed on the two days specified in Section 256(1) of the Code. The court gets jurisdiction to acquit the accused under Section 256(1), only if the complainant fails to appear on the two types of days specified in the said section. 5. A reading of the order under challenge itself will show that the court did not apply its mind to the said requirement under Section 256 of the Code. It appears from the appeal memo that the case was posted for execution of warrant and production of accused. A plain reading of Section 256(1) itself will show that an accused cannot be acquitted on the day to which the case is posted for “production” of accused, as held in Joy Abraham v. Jiju Thomas and another (2010(2) KHC 357). Hence, the order under challenge is un-sustainable in law and is liable to be set Crl.A. NO.2081/09 3 aside. In the above circumstances, 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 18.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs