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. 2512 of 2006() ------------------------ ST.31/2004 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... APPELLANT(S): COMPLAINANT ------------------------- P.K.MOHAMMED SHAFI, S/O.ABDUL SAMAD, VARIYATH HOUSE, PALAKKAD P.O., PULPETTA, KUZHIMANNA. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. P.AZIZ, S/O.MOHAMMED KUTTY, ILLIKKAL HOUSE, PALLIKKAL P.O., CHELEMBRA-675 653, MALAPPURAM DISTRICT. 2. STATE OF KERALA-REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE FOR R1 SRI.P.VENUGOPAL (1086/92) FOR R1 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.2512 of 2006 ---------------------------------------------- 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. The appellant is the complainant. He filed a complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. On 10.9.2004, the complainant was absent and there was no representation for him. Hence, the accused was acquitted as per the order extracted below : “Complainant absent. No representation. Process fee not paid for issuing NBW and steps against accused. Accused is acquitted u/s 256(1) Cr. P.C.” 3. Learned counsel for appellant submitted that the clerk by mistake noted the date of posting as 10.10.2004, instead of 10.9.2004. The previous posting day was 9.9.2004 and hence, it never occurred to him that the case would be posted on the very next day. On the previous day, on 9.9.2004, a petition was filed for excusing complainant's absence and it was allowed also, Crl.A. NO. 2512/2006 2 but the case was posted to the very next day. The absence was only due to the mistake of the clerk, who noted the date, it is submitted. 4. Learned counsel for first respondent submitted that the impugned order was passed since process fee was not paid for issuing non-bailable warrant against accused. On the previous day also, the case was posted for taking steps. Had steps been taken by the complainant, the order would not have been passed and hence, there is no justification in interfering with the order under challenge, it is submitted. 5. On hearing both sides and on going through the order under challenge, it is clear that the accused had not appeared in the case. Non-bailable warrant was issued against him, since he failed to appear even after service of summons. But, the complainant failed to remit the process fee for issuing non-bailable warrant. 6. On a plain reading of Section 256(1) of the Code, if there is failure on the part of the complainant to remit process fee, accused cannot be acquitted under Section 256(1) of the Code. The procedure to be followed in a case of failure to deposit Crl.A. NO. 2512/2006 3 process fee is not under Section 256(1) and hence, the order under challenge is illegal and not consistent with the provisions of the Code. Therefore, the impugned order is unsustainable and is liable to be set aside. 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 29.11.2010. The appeal is allowed. K.HEMA, JUDGE. tgs