IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 CRL.A.No. 333 of 2010() ------------------------------------ AGAINST THE ORDER IN CRLP.127/2010 Dated 11/02/2010 CC.142/2009 of JFCM COURT-IV, PUNALUR. ........................................ APPELLANT(S): PETITIONER/COMPLAINANT --------------------------------------------------------------------- P.CHANDRAN,S/O.ACHUTHAN NAIR, NEELAMBARI HOUSE,KUNNIKODE,VILAKKUDY VILLAGE, PUNALUR,KOLLAM DISTRICT. BY ADV. SRI.R.ARUN RAJ RESPONDENT(S): ACCUSED AND STATE -------------------------------------------------------------- 1. SOMAN KARUPATH,S/O.RAMANATHAN NAIR, RAM NIVAS,KALLEKULANGARA,PALAKKAD DISTRICT 2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.MOHAN JACOB GEORGE FOR R1 SMT.P.V.PARVATHI FOR R1 SMT.REENA THOMAS FOR R1 SRI.RAMMOHAN L. FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No. 333 OF 2010 ----------------------------------- Dated this the 23rd day of 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 filed a complaint against first respondent herein alleging offence u/s138 of Negotriable Instruments Act. The case was taken on file and the accused entered appearance. He was exempted from appearance, on application. But on 11.12.2009, complainant was absent. Hence accused was acquitted under section 256(1) of Cr.P.C. 3. Heard both sides. According to learned counsel for appellant the case was transferred to another court and appellant's counsel was not aware of it. Therefore, appellant happened to be absent on 11.12.2009. The absence was not deliberate and hence, the trial court ought to have granted adjournment, it is contended. Cheque amount is Rs.2,00,000/-, it is pointed out. Crl.A. No.333/10 2 4 On hearing both sides and on going through the order under challenge I find that complaint is dated 21.2.2009 and the accused had entered appearance and the case was being posted to different dates. Case was posted for evidence on the date on which accused was acquitted. 5. A reading of Section 256(1) of the Code reveals that if the complainant is absent, the Magistrate can acquit the accused on the two days specified therein. Those days are; (1) the day appointed for the appearance of the accused, if the summons has been issued on complaint and (2) any day subsequent thereto to which the hearing may be adjourned. 6. Section 256(1) of the Code does not permit the court to acquit the accused on any day other than the two days specified in the section. Necessarily, the court has no power to acquit the accused on the day to which the case is posted for evidence. I have held in in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) that the Magistrate shall not acquit the accused on the day to which the case is posted for evidence. In the result the following order is passed : (i) The impugned order is set aside. Crl.A. No.333/10 3 (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 2.11.2010. The appeal is allowed. K. HEMA, JUDGE. Sou.