IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 CRL.A.No. 740 of 2010() ----------------------- ST.237/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... APPELLANT(S): PETITIONER/COMPLAINANT/APPELLANT: ----------------------------------------------- HARIPRASAD, AGED 22 YEARS, S/O.NARAYANANKUTTY, NECHINGAL VEEDU, KANAYAM, KULAPPULLI, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT(S): ACCUSED: ----------------------- 1. SURESH KRISHNA, AGED 36 YEARS, S/O.UNNIKRISHNAN EZHUTHASSAN, PATHINARUPODIYIL HOUSE, P.O.CHERPULASSERY, PIN-679503, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.740 of 2010 ---------------------------------------------- Dated 14th 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 is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file and summons was issued to the accused. Thereafter, the case was posted for evidence. On 3.12.2009, when the case was posted for evidence, the complainant was not present and hence, the following order is passed : “The above complaint has been filed by the complainant u/s. 138 of the Negotiable Instruments Act. Complainant is not present for oral evidence in spite of directions. Absence of the complainant not condoned. Accused acquitted u/s.256 Cr.P.C.” The above order is under challenge. 3. At the time when this appeal was taken up for hearing, there was no representation for the appellant. On going through the appeal memo and the order under challenge, it is Crl.A. NO.740/2010 2 clear that the case was posted for evidence on the day on which the accused was acquitted under Section 256(1) of the Code. The said provision does not permit or empower the court to acquit an accused on the day on which the case is posted for evidence. 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. 4. 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. Hence, the order under challenge is not sustainable. 5. In the above circumstances, the following order is Crl.A. NO.740/2010 3 passed : (i) The impugned order is set aside. (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 25.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs