IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 CRL.A.No. 2046 of 2009() ------------------------ ST.2003/2008 of JUDL. MAGISTRATE OF FIRST CLASS I, KOTTAYAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ P.C.JAMES, PUTHENPARAYIL HOUSE, PAMPADY P.O., KOTTAYAM. BY ADV. SMT.A.SREEKALA RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MANI K.K., COMPANYPARAMBIL HOUSE, CHUMATHARA P.O.,THIRUVALLA. ADV. SRI.R.GIREESH VARMA FOR R2 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 9.9.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.2046 of 2009 ---------------------------------------------- Dated 9th 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. During trial, on 22.7.2009, complainant was absent and hence, accused was acquitted under Section 256(1) of the Code. 3. Learned counsel for appellant submitted that though the complainant was absent on 22.7.2009, there was representation by the counsel. The order under challenge itself will reveal the said fact. The accused was acquitted because, the complainant could not explain the reason why proof affidavit was not filed. On one of the postings, the clerk noticed that the case was posted to a Sunday, which is a holiday. The clerk could not inform the complainant about the next posting date. The trial court ought to have adjourned the case, instead of acquitting the accused, it is submitted. Crl.A. NO. 2046/09 2 4. The second respondent was served, but there is no representation at the time of hearing. On going through the impugned order, is is clear that the case was posted as last chance to 18.7.2009, for filing proof affidavit. Thereafter, on the date on which the impugned order was passed also, the case was posted for filing proof affidavit. 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. 6. Necessarily, the court cannot 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 Crl.A. NO. 2046/09 3 acquit the accused on the day to which the case is posted for evidence. Hence, the order under challenge is not sustainable in law and hence, the following order is 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 19.10.2010. The appeal is allowed as above. K.HEMA, JUDGE. tgs