IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 740 of 2010()
1. HARIPRASAD, AGED 22 YEARS,
... Petitioner
Vs
1. SURESH KRISHNA, AGED 36 YEARS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.P.JAYARAM
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :14/09/2010
O R D E R
K.HEMA, J.
----------------------------------------------
Crl.Appeal No.740 of 2010
----------------------------------------------
Dated 14th 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, alleging offence under Section
138 of the Negotiable Instruments Act. The case was taken on file
and summons was issued to the accused. Thereafter, the case
was posted for evidence. On 3.12.2009, when the case was
posted for evidence, the complainant was not present and hence,
the following order is passed :
“The above complaint has been filed by the complainant u/s.
138 of the Negotiable Instruments Act. Complainant is not
present for oral evidence in spite of directions. Absence of
the complainant not condoned. Accused acquitted u/s.256
Cr.P.C.”
The above order is under challenge.
3. At the time when this appeal was taken up for
hearing, there was no representation for the appellant. On going
through the appeal memo and the order under challenge, it is
Crl.A. NO.740/2010 2
clear that the case was posted for evidence on the day on which
the accused was acquitted under Section 256(1) of the Code. The
said provision does not permit or empower the court to acquit an
accused on the day on which the case is posted for evidence. 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.
4. 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 in P.V.Joseph v. State of Kerala and
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. Hence, the order under challenge is
not sustainable.
5. In the above circumstances, the following order is
Crl.A. NO.740/2010 3
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
25.10.2010.
The appeal is allowed.
K.HEMA, JUDGE.
tgs