IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 659 of 2007()
1. ALWAYE CHITTIES AND FINANCE PVT. LTD,
... Petitioner
Vs
1. S.DHARMARAJA IYYER, SREE LAKSHMI,
... Respondent
2. STATE OF KERALA REPRESENTED BY ITS
For Petitioner :SRI.G.G.MANOJ
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :28/01/2011
O R D E R
K.HEMA, J.
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Criminal Appeal No.659 of 2007
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Dated 28th January, 2011.
J U D G M E N T
This appeal arises from an order of acquittal
passed under Section 256(1) of the Code of Criminal Procedure
(‘the Code’, for short).
2. The appellant is the complainant. He filed a
complaint against first respondent before the Magistrate Court,
alleging offence under Section 138 of the Negotiable
Instruments Act. The complaint was filed on 22.6.2004 and it
was taken on file in the year 2004. Thereafter, even before
issuing summons to the accused, the accused was acquitted
under Section 256(1) of the Code, since neither the complainant
nor his counsel was present.
3. Learned counsel for appellant submitted that
accused was acquitted even before summons was issued. The
complainant was not present due to reasons beyond his control.
He also produced for perusal, a certified copy of the proceeding
sheet. On hearing appellant’s counsel and on going through
the impugned order and the proceeding sheet, it is clear that
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even prior to the appearance of accused, the accused was
acquitted under Section 256(1) of the Code. On a reading of
Section 256(1) of the Code itself, it is clear that such an order of
acquittal is not sustainable.
4. As per Section 256(1), the accused can be
acquitted under the said section, only on the day to which case
is posted for appearance of accused, in case summons is issued
or on the day to which the case is posted for hearing of
prosecution under Section 254(1). The order under challenge
being passed prior to such days and not on either of the days,
the order of acquittal is not sustainable.
5. If steps are not taken by complainant, the court is
not empowered to acquit the accused, under Section 256(1) of
the Code. [vide P.V.Joseph v. State of Kerala (2010(4) KLT
697), Joy Abraham v. Jiju Thomas (2010(2) KLT 735)]. In the
above circumstances, the order under challenge is
unsustainable and hence, the following order is passed :
(i) The impugned order is set aside.
(ii) The court below shall take the case on file and
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dispose of the same in accordance with law.
(iii) The parties shall appear before the trial court on
15.3.2011.
The appeal is allowed.
K.HEMA, JUDGE.
tgs