IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 CRL.A.No. 1002 of 2007() ------------------------ CC.519/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... APPELLANT(S): (LEGAL HEIR AND WIDOW OF THE DECEASED COMPLAINANT) ---------------------------------------------------------------- THRESSIA VINCENT, W/O. LATE VINCENT STANLEY, AGED 53 YEARS, TEENA DALE, SAKTHIKULANGARA CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.P.SIVARAJ RESPONDENT(S): ACCUSED & STATE ------------------------------- 1. P.LALI, S/O. O.PARAMU, LALMANDIRAM, NJARACKAL, PERINAD P.O., KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.N.MOHANAN FOR R1 PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1002 of 2007 ---------------------------------------------- Dated 12th October, 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, who is the legal heir and widow of deceased complainant, filed this appeal. The deceased/ complainant filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act, as early as in 2003 and the case was being prosecuted, for a long period of about 3 years. 3. The deceased/complainant was a chronic cancer patient and petitions were filed on different dates, since he could not appear in court during trial. Ultimately, on 13.9.2006, he died, as evidenced by Annexure A2. But, the court acquitted the accused on 1.7.2006, when the case was posted for evidence, holding that the presence of complainant is very much necessary to proceed with the case. The court also found that the delay in disposal of the case will not be in the interests of justice and that the case cannot be adjourned indefinitely for evidence due to Crl.A. NO.1002/07 2 absence of complainant and that the case is an old one. Hence, the accused was acquitted under Section 256(1) of the Criminal Procedure Code. 4. When the case was called, the appellant's counsel was absent. The respondent's counsel is present. On going through the impugned order itself, it is clear that the case was instituted in the year 2003 and the accused was acquitted after about 3 years, on 1.7.2006, on the date to which the case was posted for evidence. 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 day posted for evidence is not a day falling under Section 256(1) and hence, the court shall not acquit an accused on any such day. 6. The acquittal of an accused under Section 256(1) on a day to which the case is posted for evidence is illegal and without jurisdiction, as held by this court in P.V.Joseph v. State Crl.A. NO.1002/07 3 of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007). Hence, the order under challenge is liable to be set aside and I do so. I make it clear that if the legal heir of the deceased/complainant has not filed any petition before the trial court, it is left to her to take appropriate steps to continue the proceedings. In the above circumstances, 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 25.11.2010. The appeal is allowed. K.HEMA, JUDGE. tgs