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. 1373 of 2009() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.490/2009 Dated 13/07/2009 CC.109/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT/COMPLAINANT: -------------- RAJESH BALAKRISHNAN, S/O.BALAKRISHNAN, PASHNATH HOUSE, IRINJALAKUDA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR BY ADV. SRI.SHEEJO CHACKO RESPONDENT(S): --------------- 1. M/S.RICHARD & RIYAN ENTERPRISES, LOUIS ESTATE, K.D.PLOT, P.O. KALAMASSERY, REP. BY ITS MANAGING PARTNER, GILROY JOHN LOUIS, S/O.ANTONY WILLIAMS, LOUIS ESTATE, SOUTH KALAMASSERY, KALAMASSERY DEVELOPMENT PLOT, P.O.KOZHI-683 103, ERNAKUKLAM DIST. 2. GILROY JOHN LOUIS, S/O.ANTONY WILLIAMS, LOUIS ESTATE, SOUTH KALAMASSERY, KALAMASSERY DEVELOPMENT PLOT, P.O.KOCHI-683 103, ERNAKULAM DIST. 3. HETHER MASLIDA LOUIS, PARTNER OF M/S.RICHARD & RIYAR ENTERPRISES, W/O.GILROY JOHN LOUIS, S/O.ANTONY WILLIAMS, LOUISE ESTATE, SOUTH KALAMASSERY, KALAMASSERY DEVELOPMENT PLOT P.O. KOCHI-683 109, ERNAKULAM DISTRICT. 4. RICHARD LOUIS, PARTNER OF M/S.RICHARD AND RIYAN ENTERPRISES, S/O.GILROY JOHN LOUIS, LOUIS ESTATE, SOUTH KALAMASSERY, KALAMASSERY DEVELOPMENT PLOT, P.O.KOCHI 683 109, ERNAKUKLAM DISTRICT. 5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUKLAM. ADV. SRI.A.B.JALEEL FOR R1-4 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1373 of 2009 ----------------------------------------------- Dated 8th September, 2010. JUDGMENT This appeal arises from an 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 respondent nos. 1 to 4 alleging offence under Section 138 of the Negotiable Instruments Act. On 3.10.2008, complainant was absent and hence the court acquitted the accused under Section 256(1) of the Code. 3. Learned counsel for appellant submitted that it would appear from the order under challenge that the complainant was absent on every day to which the case was posted for evidence, viz. 19.7.2008, 11.8.2008, 26.8.2008, 8.9.2008, 24.9.2008 and 3.10.2008. But, factually, on 26.8.2008, complainant field a proof affidavit and list of witnesses. On 8.9.2008, there was was not sitting. On 24.9.2008, complainant was sick and a petition along with a medical certificate was filed. [Crl.A.No.1373/09] 2 4. The trial court on consideration of the application allowed the petition and the case was posted to 3.10.2008. On 3.10.2008, a petition was field for excusing his absence since complainant's uncle died. The complainant could not appear on 3.10.2008 due to reasons beyond his control. Therefore, it was not proper to acquit the accused under Section 256(1) of the Code, it is submitted. The case was taken on file as early as on 10.4.2006 and the complainant was vigilantly prosecuting the case. 5. Respondents 1 to 4 entered appearance. On going through the order under challenge and considering the facts stated by learned counsel for appellant, it is clear that the order under Section challenge was passed on the date on which the case was posted for “evidence”. As per Section 256(1) of the Code, the accused can be acquitted only on the two days specified in the Section. But, the day to which the case is posted for “evidence” is not a day referred to in Section 256(1) of the Code. In the light of the dictum laid down by this Court in P.V.Joseph v. State of Kerala & Another (Judgment dated 3.9.2010 in Crl.A.485 of 2007) the accused cannot be acquitted on the day to which the case is [Crl.A.No.1373/09] 3 posted for evidence. The court shall not take Section 256(1) of the Code as a tool to terminate a proceedings without ascertaining whether requirements under the said provisions are satisfied or not. As pointed out by learned counsel for petitioner, it appears that petitioner failed to appear in court for reasons beyond his control. Anyway, the order under challenge is illegal and without jurisdiction. Hence, 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. K. HEMA, JUDGE. krs.