IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 CRL.A.No. 1374 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.491/2009 Dated 13/07/2009 ST.2432/2006 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... APPELLANT(S): -------------- MOHAMMED ASHRAF K. 47 YEARS, “AFRA COTTAGE”, KODAMPUZHA, FAROOK COLLEGE (P.O.) FEROKE AMSOM AND DESOM. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): --------------- 1. V.MOHAMMED, S/O.AHAMMEDKUTTY HAJI, C.N. HOUSE, NO.VI/368, VAYANCHERI MUKKU, IRITTY, KANNUR DIST. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SHAJI THOMAS PORKKATTIL FOR R1 SRI.BINU PAUL FOR R1 SRI.T.V.VINU FOR R1 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1374 of 2009 ----------------------------------------------- Dated 7th September, 2010. JUDGMENT This appeal is filed against an order of acquittal under Section 256(1) of the Code of Criminal Procedure. 2. The appellant is the complainant, who filed a complaint against first respondent herein alleging offence under Section 138 of the Negotiable Instruments Act. On the date on which the case was posted for evidence, the complainant was absent. The court found that the complainant is continuously absent and since the case is posted for evidence and since the case is one which is included in the target, the accused is acquitted under 256(1) of the Code. 3. Learned counsel for the appellant submitted that though the complainant was absent on the day on which the impugned order was passed, he was represented by a counsel. The complainant could not appear in court only because he was laid up. Learned counsel for first respondent submitted that the complainant was protracting the trial by being absent [Crl.A.No.1374/2009] 2 continuously even on the dates on which the case was repeatedly posted for evidence. 4. On hearing both sides and on going through the order, it is clear that the case ended in an acquittal under Section 256 (1) of the Code on the date on which the case was posted for “evidence”. One of the reasons shown by the learned Magistrate to acquit the accused was that the case was posted for “evidence” and it was included in the “target”. The fact that the case was included in the target is not a ground to acquit the accused under Section 256(1) of the Code. Equally so, if the case is posted for evidence. 5. In the light of the dictum laid down by this Court in P.V.Joseph v. State of Kerala & Another (Crl. Appeal No. 485 of 2007 dated 3.9.10), the accused cannot be acquitted on the day to which the case is posted for evidence. An accused can be acquitted only on the two days specified in Section 256(1) of the Code. Hence, the order under challenge is unsustainable and the case is to be remanded to the trial court for fresh consideration and disposal, in accordance with law. [Crl.A.No.1374/2009] 3 In the result, the following order is passed: 1) The order under challenge in this appeal is set aside. 2) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law. 3) Parties shall appear before the trial court on 12.10.2010. Appeal is allowed. Sd/- K. HEMA, JUDGE. krs.