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. 2841 of 2008() -------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.1002/2008 Dated 21/11/2008 CC.85/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E&O), ERNAKULAM ...................................................................... APPELLANT / COMPLAINANT : ----------------------------------------- N.D. JOSEPH, PROPRIETOR, TRAVANCORE EARTH MOVING CO., NELLIMATTATHIL BUILDING, THIRUVAMKULAM.P.O, ERNAKULAM DISTRICT. BY ADVS. SRI. M.K. DILEEPAN SRI.DEEPAK T. NEDUNGADAN SMT.P.SUMITHRA RESPONDENTS / ACCUSED AND STATE: --------------------------------------------------------- 1. MR. JOSEPH CHACKO, KORATHARA HOUSE, KURISUMOOD.P.O, CHANGANASSERY, KOTTAYAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI. P. VINODKUMAR SRI. SUSHANTH J. R2 BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR 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.2841 of 2008 -------------------------- Dated this the 3rd September, 2010 J U D G M E N T This is an appeal against the order of acquittal under Section 256 (1) of the Code of Criminal Procedure. 2. The appellant filed a complaint against the 1st respondent herein on 3.1.2005 and the complaint was taken on file in the year 2006. Thereafter, summons was issued to the accused and he failed to appear before the Court. Therefore, non-bailable warrant was issued against him on 26.6.2007. Warrants were thereafter repeated. Proceedings under Sections 82 and 83, Cr.P.C were also taken and the case was posted to 27.3.2008 and on that day, the trial court acquitted the accused under Section 256 (1) of the Code, since the complainant was absent and there was no representation. 3. Heard learned counsel for the appellant. First respondent accepted notice but he did not appear in these proceedings. Heard learned Public Prosecutor also. According to the appellant, he was vigilant in prosecuting Crl.A No.2841 of 2008 2 the case over a period of 3 years i.e from 2005-2008, but the accused did not appear in Court, in spite of receipt of summons and repeated issuance of warrants. Learned Magistrate was pleased to issue steps under Sections 82 and 83, Cr.P.C but despite this, the accused did not appear. In such circumstances, the court ought not to have acquitted the accused who dragged on proceedings by his willful conduct, it is argued. The complaint was filed on 3.1.2005 and the complainant was prosecuting the case for a period of three years. The cheque amount is Rs.2 lakhs. It is also pointed out that even in these proceedings, the accused did not appear though notice was served on him, it is submitted. 4. On hearing both sides and on going through the proceeding sheet and the order under challenge, it is clear that the accused was acquitted not on the two days specified in Section 256 (1) of the Code. The court can acquit an accused under Section 256 (1) of the Code only on the two types of days mentioned in the Section, if the complainant is absent. A reading of the impugned order will not reveal the exact nature of the day on which the accused was acquitted. It is only stated that the process is remitted Crl.A No.2841 of 2008 3 and the complainant was absent and there was no representation. 5. But it is clear from the proceeding sheet that non-bailable warrant was issued against the accused and proceedings under Sections 82 and 83 of Cr.P.C were also initiated by learned Magistrate , since prima facie the court was satisfied that the accused was absconding and he was concealing himself to evade the non-bailable warrant issued against him. In such circumstances, in the light of the dictum laid down by this Court today in P.V Joseph Vs. State of Kerala & Another (Crl.A No.485 of 2007), the order under challenge is not sustainable. The order of acquittal is to be set aside and the case is to be remanded to the trial court for fresh consideration and disposal, in accordance with law. In the result, the following order is passed: (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. Crl.A No.2841 of 2008 4 (iii) The appellant shall report before the trial court on 4.10.2010. The appeal is allowed as above. K.HEMA, JUDGE ma