IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 852 of 2009()
1. ISMAIL K.
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.SHAJI THOMAS PORKKATTIL
For Respondent : No Appearance
The Hon'ble MRS. Justice K.HEMA
Dated :03/09/2010
O R D E R
K. HEMA, J.
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Crl.A No.852 of 2009
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Dated this the 3rd September, 2010
J U D G M E N T
This appeal arises from an order of acquittal under
Section 256 (1) of the Code of Criminal Procedure.
2. The appellant filed an appeal against the 2nd
respondent herein, alleging offence under Section 138 of
Negotiable Instruments Act. The case was taken on file as
early as in 2007, and summons was issued to the accused.
On 16.12.2008, the complainant filed proof affidavit and the
case was posted for evidence to 14.1.2009. On 14.1.2009,
the complainant was absent. The accused was also absent.
But the Court acquitted the accused, since the
complainant was absent.
3. Learned counsel for appellant submitted that the
complainant was vigilant in prosecuting the case on all
posting dates. Complainant was present in court over a
period of two years from 2007 up to 14.12.2008. It is only
on 14.1.2009, he happened to be absent. Even the
accused was not present on the day and the complainant
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2
had also filed a proof affidavit on the previous posting date.
But, the court ignored all these facts and acquitted the
accused under Section 256 (1), Cr.P.C. The court ought not
to have acquitted the accused, but an opportunity ought to
have been given to the complainant, it is submitted.
4. First respondent accepted notice but he did not
enter appearance in this appeal. On hearing learned
counsel for the appellant and learned Public Prosecutor and
on going through the order under challenge, the proceeding
sheet Annexure -A1 and certified copy of the proof affidavit
filed by the complainant before the trial court on
16.12.2008, I am satisfied that the order under challenge is
not sustainable. The day on which the accused was
acquitted is not one of the days specified in Section 256 (1)
of the Code. But it was the day to which the case was
posted for evidence. A plain reading of Section 256 (1)
shows that an accused cannot be acquitted on the day to
which the case is posted for “evidence”.
5. I have already held today in P.V Joseph Vs. State
of Kerala & Another (Crl.A No.485 of 2007) that an accused
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cannot be acquitted on a day to which the case is posted for
evidence under Section 256 (1) of the Code. Hence the
order under challenge is not sustainable. There can be no
doubt that the Court ought to have given a chance for the
complainant since he was vigilant through out the
proceedings and he appeared on all posting dates except
the day on which the impugned order was passed.
6. But the Court has shown unwarranted haste in
terminating a proceedings to the detriment of the
complainant and beneficial to the accused who was
evading the process of the court. The court ought to have
looked into the provisions contained in Section 256 (1) of
the Code and proceeded in accordance with what is laid
down in the said provision. In the light of the dictum laid
down by this Court today in P.V Joseph Vs. State of Kerala &
Another (Crl.A No.485 of 2007), the order under challenge is
not sustainable.
8. In the above circumstances, the order of acquittal
is to be set aside and the case is to be remanded to the trial
court for fresh consideration and disposal, in accordance
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4
with law.
In the result, the following order is passed:
(i) The order under challenge in this appeal is set
aside.
(ii) The case is remanded to the trial court for fresh
consideration and disposal, in accordance with
law.
(iii) Appellant shall report before the trial court on
4.10.2010.
The appeal is allowed.
K.HEMA, JUDGE
ma
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K.HEMA, JUDGE
ma