IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 CRL.A.No. 1303 of 2004() ------------------------ CC NO.951/2000 OF THE CHIEF JUDICIAL MAGISTRATE, ERNAKULAM. APPELLANT(S): COMPLAINANT: -------------------------- M/S. MALABAR REXIN & PLASTICS, BANERJI ROAD, COCHIN-682 018, REP. BY MANAGING PARTNER, T.P. BASHEER. BY ADV. SRI.M.M.SAIDU MUHAMMED RESPONDENT(S): ACCUSED/STATE: ----------------------------- 1. M.S. BABU, S/O. SADASIVAN, MANAKKATTUPADA VEEDU, EDAVILANGU P.O., KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.H.SAVAN KUMAR(R1) PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.1303 of 2004 ----------------------------------------------- Dated 22nd September, 2010. J U D G M E N T This appeal is filed against an order of acquittal under Section 256(1) of the Code of Criminal Procedure. 2. The appellant filed a complaint against first respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file and summons was issued to the accused thereafter. Since accused did not appear, non-bailable warrant was issued. Later, warrant was recalled on application. On 30.3.2004, since complainant was absent and there was no representation, the accused was acquitted under Section 256(1) of the Code. 3. As per the appeal memo, the appellant was vigilant in prosecuting the complaint. According to the complainant, he bonafide believed that the case was posted to 27.5.2004. But, the case was disposed of on 30.3.2004. On 12.2.2004, the accused requested the court for time for settling the case and the court granted three months' time. The complainant had filed proof affidavit and the accused's counsel requested time for cross-examination. The date announced by Crl.Appeal No.1303/04 2 the Bench Clerk was 27.5.2004. The absence was not wilful, but, it happened only in the circumstances stated above. 4. On going through the proceeding sheet, I find that the evidence was partly adduced in this case and summons was also issued to the witness. In such circumstances, the accused cannot be acquitted under Section 256(1), going by the language of the said provision. 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 has no power to acquit the accused on the day to which the case is posted for evidence. I have held in P.V.Joseph v. State of Kerala and Crl.Appeal No.1303/04 3 another (order dated 3.9.2010 in Crl.A.No.485/2007) that the Magistrate shall not acquit the accused on the day to which the case is posted for evidence. 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 28.10.2010. The appeal is allowed. K.HEMA, JUDGE. tgs