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. 1235 of 2008() ------------------------ CC.536/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PERINTHALMANNA .................... APPELLANT(S): -------------- C.M.MOHAMMED SHANAVAS, S/O.MUHAMMED CHOLAMUGHATH HOUSE, AMMI8NIKAD PERINTHALMANNA TALUK, MALAPPURAM BY ADV. SRI.U.K.DEVIDAS RESPONDENT(S): --------------- 1. MURALEEMOHAN, S/O.RAGHAVAN NAIR PATTIASSERI HOUSE, INDIRALAYAM PARIYAPURAM PO., THOOTHA, ANAMANGAD, MALAPPURAM 2. STATE OF KERALA, REP. BY THROUGH GOVERNMENT PLEADER AT HIGH COURT OF KERALA ADV. SRI.MANSOOR.B.H. FOR R1 PUBLIC PROSECUTOR SMT.C.K.CHARISMA. 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.1235 of 2008 ---------------------------------------------- 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. Appellant is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The complaint was taken on file and the case was posted to different dates. On 17.3.2007, the complainant was absent. Hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge. 3. According to the appellant, he was vigilant in prosecuting the case and hence an opportunity ought to have been given to the complainant and the case ought to have been adjourned to some other day. The court fell in error in acquitting the accused, since the complainant was absent. The complainant was represented through counsel and he filed an application also on 7.3.2007, as C.M.P.No.550/07 to advance the case for adducing evidence. Therefore, his willingness and readiness to Crl.A. NO. 1235/08 2 adduce evidence ought to have been taken into account by the lower court and the accused should not have been acquitted, it is submitted. 4. Learned counsel for first respondent submitted that it is not correct to say that appellant was vigilantly prosecuting the case. In the appeal memo, it is averred that appellant got a job abroad and he had some personal inconvenience to appear before the court between 10.3.2007 and 14.3.2007 and hence, there is no reason to interfere with the order. 5. Heard both sides. The appellant has produced two orders in this appeal, purported to have been issued by the Magistrate Court on 17.3.2007, acquitting the accused. While one of the orders is a detailed order running to two pages, the other order is a two line order. It is not understood why there were two orders of acquittal in the same case. Any way, there is no doubt that in respect of the same case, on the same day, two orders ought not to have been passed under the same provision. 6. However, on going through the detailed order, it is seen that the case was posted for evidence on the day on which the accused was acquitted. An order of acquittal can be passed Crl.A. NO. 1235/08 3 under Section 256(1) of the Code only on the day to which the case is posted for “appearance” of the accused or the day to which the case is posted for “hearing”, as stated in Section 256 (1). In the light of the decision reported in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) an accused cannot be acquitted on the day on which the case is posted for evidence. In the above circumstances, the order of acquittal passed under Section 256(1) of the Code cannot be sustained. 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 18.10.2010. The appeal is allowed as above. K.HEMA, JUDGE. tgs