IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1848 of 2009()
1. GEORGE
... Petitioner
Vs
1. SUNILKUMAR
... Respondent
For Petitioner :SRI.RAJESH CHAKYAT
For Respondent :SRI.T.A.SHAJI
The Hon'ble MRS. Justice K.HEMA
Dated :09/09/2010
O R D E R
K.HEMA, J.
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Crl.Appeal No.1848 of 2009
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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 2.2.2009, 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
though the complainant was absent on the day on which the
impugned order was passed, he was represented by his counsel.
In the order under challenge, it is not mentioned that the
complainant was represented. The court ought to have granted
adjournment, instead of acquitting the accused, since he was
represented by his counsel, it is submitted.
4. The first respondent was served, but there is no
Crl.A. NO. 1848/09 2
representation for him today. On going through the order under
challenge, it is clear that the case was posted for evidence on the
day on which the accused was acquitted under Section 256(1) of
the Code. A plain reading of Section 256(1) shows that an
accused can be acquitted under Section 256(1) of the Code only
on the two days specifically referred to in the said section. 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) 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. I have held 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 in
Crl.A. NO. 1848/09 3
law 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 dispose
of the same in accordance with law.
(iii) The parties shall appear before the trial court on
18.10.2010.
The appeal is allowed.
K.HEMA, JUDGE.
tgs