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. 1695 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.690/2009 Dated 14/08/2009 CC.176/2009 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... APPELLANT(S): PETITIONER/APPELLANT/COMPLAINANT ---------------------------------------------- SUNIL KUMAR, S/O.LATE V.A.PEETHAMBARAN, AGED 43, SUSHAMA BHAVAN, KOMMADI WARD, ALAPPUZHA NORTH P.O. BY ADV. DR.V.N.SANKARJEE RESPONDENT(S): RESPONDENTS/ACCUSED & PUBLIC PROSECUTOR ------------------------------------------------------ 1. T.B.BIJESH MOAN, THAZHCHAYIL VEEDU, AVALOOKKUNNU P.O., SOUTH ARYAD, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON 08/09/2010 DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1695 of 2009 ----------------------------------------------- Dated 8th September, 2010. JUDGMENT This appeal is filed against an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. 2. Complainant is the appellant. He filed a complaint against the first respondent herein alleging offence under Section 138 of the Negotiable Instruments Act. The case was adjourned from time to time and on 20.6.2009 the accused was acquitted on the ground that the complainant was absent. The said order is extracted as hereunder: “Complainant absent as was done on all prior postings, despite today's posting as “for evidence of complainant as last chance,” and specific direction to be present today. In the aforesaid circumstances, I find no reason to adjourn the case. Hence, the application filed for the complainant is dismissed, and the accused is acquitted under Section 256(1) Cr.P.C. 3. Learned counsel for petitioner submitted that though the complainant was absent a petition was filed by the [Crl.A.1695/2009] 2 counsel, since the complainant was laid up. An opportunity ought to have been given by the court for adducing evidence. Therefore, the order under challenge may be set aside, it is submitted. 4. Notice was served on the accused first respondent. But, there is no representation. On going through the order under challenge, it is clear that the case was posted for evidence of the complainant on the date on which the impugned order was passed. On the previous day also the case was posted for evidence. 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. The said section 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 P.V.Joseph v. State of Kerala and [Crl.A.1695/2009] 3 another (Judgment 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. 6. 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. 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.