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. 2204 of 2008() --------------------------------- CC.1322/2002 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... APPELLANT(S): COMPLAINANT ---------------------------------------------- M/S.LARSEN & TOUBRO LIMITED P.O. BOX NO. 1723, RAVIPURAM JUNCTION M.G.ROAD, KOCHI 682 016 REPRESENTED BY ITS AUTHORISED SIGANATORY AND EXECUTIVE MR.SANEESH KUMAR. BY ADVS. SRI.A.KUMAR RESPONDENT(S): ACCUSED & STATE ------------------------------------------------------ 1. MR.SANTHOSH KUMAR M/S. SANTHOSH KUMAR AND ASSOCIATES K.V.17. PANAMPILLY NAGAR, COCHIN 682 036 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.VENUGOPAL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J. ------------------------- Crl.A No.2204 of 2008 -------------------------- Dated this the 3rd September, 2010 J U D G M E N T Can a person against whom warrant has been issued, who was absconded or concealing himself to take warrant be acquitted under Section 256 (1) of the Code? This is the short question that arises for consideration in this appeal. 2. Appellant filed a complaint against the respondent herein alleging offence under under Section 138 of the Negotiable Instruments Act. The case was taken on file on 30.7.2002 and summons were issued to the accused. He evaded summons and hence the Court issued Non-bailable warrant against the accused repeatedly. After about five years on 28.7.2007 the court issued steps under Sections 82 and 83 of Cr.P.C. The case was thereafter posted to 29.10.2007 and thereafter to 29.1.2008. On 29.1.2008, the court passed the impugned order stating that the complainant is continuously absent and the accused is acquitted under Section 256 (1) of Cr.P.C. The above order is under challenge in this appeal. Crl.A No.2204 of 2008 2 3. Learned counsel for the appellant submitted that the appellant was very vigilant in prosecuting the case. Though continuous efforts were taken to procure the presence of the accused in court, the accused did not appear. He evaded summons and also non-bailable warrant issued by the Court. Thereafter, the court was pleased to issue steps under Sections 82 and 83 of the Code and in spite of the same, the accused did not appear but the accused was acquitted under Section 256 (1) of the Code only because the complainant happened to be absent on 29.1.2008. The complainant's counsel had appeared on his behalf and he was represented by the counsel. The order under challenge is silent about the complainant's counsel's presence, it is submitted. 4. Learned counsel for the appellant also submitted that notice was issued by this Court to the 2nd respondent through the Circle Inspector of Police and the 2nd respondent is served in this appeal in the same address. But he is absent and he has not entered appearance in this appeal. The complainant was Crl.A No.2204 of 2008 3 prosecuting the case for a period of about eight years, still, it is unfortunate that the accused was acquitted even though he did not appear in court, it is submitted. The amount covered by the cheque is more than Rs.2 lakhs and the complainant is driven to this Court because of the impugned order even though the accused did not appear in court,. in spite of the coercive steps taken apart him. 5. On 29.1.2008 the accused was acquitted since the complainant did not comply with the order issued on the previous posting in the matter of publication. Learned counsel for the appellant submitted that the order was passed to effect publication in "Malayala Manorama" Thiruvananthapuram edition but instead the complainant had produced paper publication in "Deshabhimani" daily and therefore, he was directed to effect publication as per the earlier order in "Malayala Manorama" itself. Since the complainant did not produce draft publication and the complainant was absent on that day and though the counsel had made representation on Crl.A No.2204 of 2008 4 his behalf, the accused was acquitted. 6. On hearing both sides and on a perusal of the order under challenge and also the proceeding sheet which is marked as Annexure 1, it is clear that the complaint was taken on file as early as in 2002 about 8 years back. The case was pending before the Court itself for more than 5 years. Proceeding sheet will reveal that the complainant took all possible steps to procure the presence of accused in Court and the Court was pleased to issue non-bailable warrant since 20.6.2006. Those warrants were repeatedly issued. His presence could not be procured. Steps under Section 256 of the Code were taken by the Court against the accused. 7. A reading of Section 82, Cr.P.C shows that if the Court has reason to believe any person against whom warrant has been issued by it as absconded or concealed himself so that warrant cannot be executed, such Court may publish written proclamation requiring him to appear etc. Therefore, prima facie this is a case Crl.A No.2204 of 2008 5 where the trial Court found that the accused presence could not be procured, in spite of issuance of warrant and that he had absconded or he had concealed himself to evade execution of warrant. 8. From a reading of the order under challenge, it would appear that the accused was acquitted on mainly on two grounds (1) the complainant was continuously absent (2) no draft publication was produced. A reading of impugned order and the proceeding sheet would show that the accused was acquitted not on either of the days specified in Section 256 (1) of the Code. 9. The Magistrate can acquit the accused for non-appearance of the complainant under Section 256 (1) of the Code only on either of the on two days specified in the said provision namely "(1) the day appointed for the appearance of the accused and (2) any day subsequent thereto to which the hearing may be adjourned" . 10. It is only on the two days stated above that the non-appearance of the complainant can result in Crl.A No.2204 of 2008 6 acquittal of the accused. But in this case, the case was not posted for either for appearance of the accused or for hearing as contemplated in Section 256 (1) of the Code. A reading of Section 256 (1) also shows that Section commences with the expression " if the summons has been issued on complaint and on the day appointed for the appearance of the accused". This expression indicates that an acquittal under Section 256 (1) of the Code can be made only in cases where summons has been issued on complaint and there is a day appointed for "appearance" of the accused. 11. Summons is issued under Section 204 of the Code. A reading of Section 204 and 61 of the Code will reveal that a date will have to be appointed for appearance of the accused as per the summons in Court. The accused did not appear on summons. Warrant is issued for arrest and production. 12. The accused against whom non-bailable warrant is issued cannot be extended the order of acquittal on a day to which the case is posted for "his Crl.A No.2204 of 2008 7 production" The accused can be acquitted on the day appointed for appearance and not production. The presence of accused could not be procured in spite of repeated issuance of non-bailable warrant and he was found to be have absconded or concealed himself for evading non-bailable warrant. Such a person cannot be acquitted under Section 256 (1) of the Code. The trial court committed a clear illegality in acquitting the accused against whom warrant was issued and that too on a day other than the two days specified in Section 256 (1) of the Code. 13. The anxiety shown by the Court to terminate the proceedings under Section 256 (1) of the Code in cases in which the accused is evading summons or non- bailable warrant issued by the Court, cannot be appreciated. The order under challenge is illegal and is liable to be set aside and I do so. In the result, the following order is passed: (i) The order under challenge in this appeal is set aside. Crl.A No.2204 of 2008 8 (ii) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law. (iii) Parties shall report before the trial court on 29.11.2010 The appeal is allowed as above. K.HEMA, JUDGE ma