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. 1275 of 2004() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.216/2004 Dated 25/03/2004 CC.275/2001 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... APPELLANT(S): COMPLAINANT ------------------------- P.RAJESH, S/O PARAMEWARAN, PATTUPURA HOUSE, VAZHOOR P.O.,PALLICKATHODU, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): RESPONDENTS/STATE AND THE ACCUSED ------------------------------------------------ 1. THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 2. P.D.SIVADAS, S/O DAMODHARAN, VATTAMTHOTTIYIL HOUSE,ANIKAD P.O., PALLICKATHODU,KOTTAYAM. ADV. SRI.R.S.KALKURA FOR R2 SRI.M.S.KALESH FOR R2 PUBLIC PROSECUTOR (SRI. M.R.VENUGOPAL) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1275 of 2004 ----------------------------------------------- Dated 9th September, 2010. JUDGMENT This appeal arises from an order of acquittal passed under Section 265(1) of the Code of Criminal Procedure. 2. The appellant is the complainant who filed complaint against 2nd respondent herein alleging offence under Section 138 of the Negotiable Instruments Act. During trial, on 24.06.2002, the complainant was absent and hence accused was acquitted. The impugned order is extracted herein. “The case was called on for hearing today to which it had been posted. The complainant not being present either in person or by pleader the accused is acquitted under Section 256(1) Criminal Procedure Code.” 3. The above order is under challenge. Learned counsel for petitioner submitted that the complainant was [Crl.A.No.1275/04] 2 prosecuting his case vigilantly ever since it was taken on file on 24.4.2001. He was present on almost all the posting dates over a period of two years. On the date on which accused was acquitted, complainant was absent, but an application was filed through his counsel. It is not correct to say that he was not represented by his counsel as stated in the order. 4. The 2nd respondent was served notice in this appeapl. But, there is not representation for him. On going through the impugned order and the proceeding sheet, I find that the case was posted for evidence to different dates. It also appears that the case was being adjourned, since accused was absent on all the subsequent dates, though the complainant was present. Anyway, it is evident that the case was posted for “evidence” on the day on which accused was acquitted. 5. 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 order under challenge cannot be sustained, since the accused was [Crl.A.No.1275/04] 3 acquitted on the day to which the case was posted for “evidence.” On a plain reading of Section 256(1), it is clear that the accused cannot be acquitted on any day other than the two days specified in the Section which does not include the day to which the case is posted for evidence. Hence, the order under challenge is unsustainable and the case is to be remanded to the trial court for fresh consideration and disposal, in accordance with law. In the result, the following order is passed: (i) The order under challenge in this appeal is set aside. (ii) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law. (iii) Parties shall appear before the trial court on 18.10.2010. The appeal is allowed. Sd/- K. HEMA, JUDGE. krs.