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. 1723 of 2009() ------------------------ CC.76/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ T.V.ZAVI @ ZAVIER, S/O.T.C.VARGHESE THARAKAN, PATTATHAYILVEETTIL, CHOONDAL VILLAGE, P.O.KOONAMMOOCHI, THALAPPILLY TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. R.RAJESH, S/O.KADAKYALETHVEETTIL REMANAN, "GOWRIKRISHNA", SURABI GARDEN, P.O.PALISSERY & VILLAGE, THRISSUR TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.C.M.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.1723 of 2009 ---------------------------------------------- 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 23.6.2008, the complainant was absent. Hence, the accused was acquitted under Section 256(1) of the Code. The said order is under challenge. 3. Learned counsel for the appellant submitted that the complainant could not appear in court, since he was laid up due to acute bronchitis and he also developed vomiting. The complainant was duly represented by his counsel and he had also filed a petition for excusing his absence. In such circumstances, an opportunity ought to have been granted to the complainant and the case adjourned, it is submitted. 4. The first respondent was served, but there is no Crl.A. NO.1723/09 2 representation. On going through the order and on hearing the learned counsel for the appellant, it is clear that the case was posted for evidence on 23.6.2008, on which day, the accused was acquitted on the ground that the complainant is absent. 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. 5. Section 256(1) of the Code does not permit the court to acquit the accused on any day other than the two days specified in the section. Necessarily, the court cannot acquit the accused on the day to which the case is posted for evidence. 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. Crl.A. NO.1723/09 3 (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 19.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs