IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 648 of 2009() ----------------------- CC.648/2006 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... APPELLANT(S): PETITIONER/COMPLAINANT: ------------------------------------- P.H.ABDUL GAFOOR, S/O.HYDROSE, PARAPURATH, VATTEKUNNAM KARA, EDAPPALLY NORTH P.O., ERNAKULAM. BY ADV. SRI.K.B.RAMANAND RESPONDENT(S): ACCUSED AND STATE: --------------------------------- 1. P.S.SHAFEEK, S/O.SHERIFF, NAZEEMA PERINGADAN HOUSE, VADAKKEPURAM KADARAM ROAD, KALAMASSERY NORTH P.O., NOW RESIDING AT NAMBOORIMUKALEL, PERUMBAIKADU P.O., SAMKRANTHI, KOTTAYAM-686 028. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.648 of 2009 ----------------------------------------------- Dated 27th January, 2011. J U D G M E N T This appeal arises from an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure ('the Code', for short). 2. The appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The complaint was filed as early as on 9.3.2005 and the case was taken on file in the year 2006. The accused did not appear before the trial court despite issuance of summons. Hence, trial court issued non-bailable warrant against accused. Steps were also initiated under Sections 82 and 83 of the Code. The complainant was directed to take steps. At this stage, complainant was absent and the accused was acquitted under Section 256(1) of the Code. 3. It is submitted that appellant's counsel has become a Government Pleader and hence steps are being taken to engage another lawyer. The first respondent was Crl.Appeal No.648/09 2 served, but there is no representation for him. On going through the impugned order and the facts stated in the appeal memorandum itself, it is clear that non-bailable warrants were issued against accused for causing his production before court. 4. A reading of Section 256(1) of the Code will show that the court can acquit an accused only on the two days specified in the said section. Such days do not include a day to which the case is posted for “production” of the accused upon a warrant. This is a case where even steps were taken under Sections 82 and 83 of the Code to procure presence of accused. Hence, the order passed under Section 256(1) acquitting the accused cannot be sustained especially in the light of the dictum laid down in Joy Abraham v. Jiju Thomas (2010(2) KLT 735). (I do not think it necessary to adjourn the case only for engagement of another counsel for appellant). Hence, the impugned order is unsustainable. In the result, the following order is passed : (i) The impugned order is set aside. (ii) The court below shall take the case on file and Crl.Appeal No.648/09 3 dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs