IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 CRL.A.No. 2227 of 2009() ------------------------------------ AGAINST THE ORDER IN CRLP.907/2009 DATED 27/10/2009 CC.53/2007 OF JUDICIAL I CLASS MAGISTRATE-VI, NEYYATTINKARA ................................. APPELLANT(S): PETITIONER(COMPLAINANT IN THE COURT BELOW) ------------------------------------------------------------------------------------------------------------ CENTRAL BANK OF INDIA, PALIYODU BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): (ACCUSED IN THE COURT BELOW AND STATE) --------------------------------------------------------------------------------------------------- 1. B.SIVAKUMAR, S/O.SHRI BAHULEYA PANICKER, PADMASREE, KARIKKAMANCODU, KUDAYAL P.O., VELLARADA, THIRUVANANTHAPURAM- 695 505. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.R.T.PRADEEP FOR R1 SRI.V.VIJULAL FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.2227 OF 2009 ----------------------------------- Dated this the 23rd day of September, 2010 J U D G M E N T This appeal arises from the order of acquittal u/s 256(1) Cr.P.C. 2. The appellant filed complaint against first respondent alleging offence u/s. 138 of Negotiable Instruments Act. The case was taken on file and summons was issued to accused. Thereafter, the case was posted on notification to different dates. The case was, thereafter, transferred to another court and it was posted to 4.2.2009. On 22.12.2008, in spite of notice, the complainant was absent before the transferee court and the court acquitted accused under section 256(1) of Cr.P.C. The above order is under challenged in the said appeal. 3. According to learned counsel for appellant, the accused was bound to appear in court, since summons was issued. But he did not appear. Therefore, the court ought to have granted an adjournment as is permitted by sec.256(1), it is submitted. Certified copy of proceedings sheet was also referred to and it Crl.A. No.2227/09 2 was pointed out that accused never appeared, even though the case was taken on file as early as in 2007 and it was pending for a period of about two years. 4. Learned counsel for the first respondent submitted that there is nothing in the proceedings sheet to show that the accused did not appear in court. It is to be noted that complainant was not vigilant and case happened to be pending because of the complainant's repeated absence, in spite of issuance of notice to complainant. Therefore, the order of acquittal is only legal and no interference is called for, it is argued. 5. Heard both sides. 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 or (2) any day subsequent thereto to which the hearing may be adjourned. For acquitting an accused under the said section it is not sufficient if the complainant is absent. The court shall also ensure that the day on which accused is acquitted, one of the days specifically Crl.A. No.2227/09 3 referred to Sec.256(1) of Cr.P.C. 6. It is only on the day on which the case is posted for appearance of accused after summons is issued and any day specifically to which the case is posted for or adjourned for hearing, the accused can be acquitted for the non appearance of the complainant. The court has to apply its mind to this important requirement under section 256(1) before an order of acquittal is passed. 7. The order under challenge is as follows: Complainant absent. No representation. Though this Court issued notice to the complainant, it has not turned up despite receipt of the same. Sufficient opportunities were given to the complainant for appearance. Hence the accused is acquitted u/s.256(1) Cr.P.C. This order will not show on which type of day accused was acquitted u/s.256(1) Cr.P.C. Since the order under challenge does not reveal that the order of acquittal is passed on either of the days specified under section 256(1), the order cannot be sustained. There is clear non application of mind of the court to the provision contained in Sec.256(1). The proceedings sheet will not show that the order of acquittal was passed on either of the Crl.A. No.2227/09 4 days specified in 256 (1) of Cr.P.C. It is not clear from proceedings sheet that the date on which accused was acquitted was the date to which case was posted for appearance of the accused or the day to which hearing is adjourned. The mechanical application of Sec.256(1) Cr.P.C is illegal and it cannot b sustained. 8. It is relevant to note as per the proceedings sheet, the summons was issued to the accused and the case was posted to 28.6.2008. Thereafter, the case was transferred and it was posted to 4.2.2009, but prior to such date, on 18.10.2008 the court posted the case for appearance of the parties to 23.10.2008. But, on 23.10.2008 notice was issued to complainant and the case was adjourned for appearance of accused. But, there is nothing in the proceedings sheet to show whether on any one of such dates, notice or summons was issued to accused or whether he had accepted summons and made appearance in court. In such circumstances, it cannot be said the date on which accused was acquitted was the date posted for appearance of accused either as per summons or by notice. 6. In such circumstances, the order of acquittal passed Crl.A. No.2227/09 5 under section 256(1) Cr.P.C is illegal and without jurisdiction. 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 2.11.2010. This appeal is allowed. K. HEMA, JUDGE. Sou.