Sunil Kumar vs T.B.Bijesh Moan on 8 September, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1695 of 2009()


1. SUNIL KUMAR,
                      ...  Petitioner

                        Vs



1. T.B.BIJESH MOAN, THAZHCHAYIL VEEDU,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :DR.V.N.SANKARJEE

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice K.HEMA

 Dated :08/09/2010

 O R D E R
                           K.HEMA, J.
           -----------------------------------------------
               Crl. Appeal No. 1695 of 2009
           -----------------------------------------------
                 Dated 8th September, 2010.


                           JUDGMENT

This appeal is filed against an order of acquittal passed

under Section 256(1) of the Code of Criminal Procedure.

2. Complainant is the appellant. He filed a complaint

against the first respondent herein alleging offence under

Section 138 of the Negotiable Instruments Act. The case

was adjourned from time to time and on 20.6.2009 the

accused was acquitted on the ground that the complainant

was absent. The said order is extracted as hereunder:

“Complainant absent as was done on all prior
postings, despite today’s posting as “for
evidence of complainant as last chance,” and
specific direction to be present today. In the
aforesaid circumstances, I find no reason to
adjourn the case. Hence, the application filed
for the complainant is dismissed, and the
accused is acquitted under Section 256(1)
Cr.P.C.

3. Learned counsel for petitioner submitted that though

the complainant was absent a petition was filed by the

[Crl.A.1695/2009] 2

counsel, since the complainant was laid up. An opportunity

ought to have been given by the court for adducing

evidence. Therefore, the order under challenge may be set

aside, it is submitted.

4. Notice was served on the accused first respondent.

But, there is no representation. On going through the order

under challenge, it is clear that the case was posted for

evidence of the complainant on the date on which the

impugned order was passed. On the previous day also the

case was posted for evidence.

5. 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.

The said section 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.A.1695/2009] 3

another (Judgment 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.

6. 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:

1) The order under challenge in this appeal is set

aside.

2) The case is remanded to the trial court for fresh

consideration and disposal, in accordance with

law.

3) Parties shall appear before the trial court on

12.10.2010.

Appeal is allowed.

Sd/-

K. HEMA, JUDGE.

Krs.