IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1303 of 2004()
1. M/S. MALABAR REXIN & PLASTICS,
... Petitioner
Vs
1. M.S. BABU, S/O. SADASIVAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.M.M.SAIDU MUHAMMED
For Respondent :SRI.P.H.SAVAN KUMAR
The Hon'ble MRS. Justice K.HEMA
Dated :22/09/2010
O R D E R
K.HEMA, J.
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Crl. Appeal No.1303 of 2004
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Dated 22nd September, 2010.
J U D G M E N T
This appeal is filed against an order of acquittal
under Section 256(1) of the Code of Criminal Procedure.
2. The appellant filed a complaint against first
respondent herein, alleging offence under Section 138 of the
Negotiable Instruments Act. The case was taken on file and
summons was issued to the accused thereafter. Since accused
did not appear, non-bailable warrant was issued. Later,
warrant was recalled on application. On 30.3.2004, since
complainant was absent and there was no representation, the
accused was acquitted under Section 256(1) of the Code.
3. As per the appeal memo, the appellant was
vigilant in prosecuting the complaint. According to the
complainant, he bonafide believed that the case was posted to
27.5.2004. But, the case was disposed of on 30.3.2004. On
12.2.2004, the accused requested the court for time for settling
the case and the court granted three months’ time. The
complainant had filed proof affidavit and the accused’s counsel
requested time for cross-examination. The date announced by
Crl.Appeal No.1303/04 2
the Bench Clerk was 27.5.2004. The absence was not wilful,
but, it happened only in the circumstances stated above.
4. On going through the proceeding sheet, I find
that the evidence was partly adduced in this case and
summons was also issued to the witness. In such
circumstances, the accused cannot be acquitted under Section
256(1), going by the language of the said provision. 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.
5. 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 P.V.Joseph v. State of Kerala and
Crl.Appeal No.1303/04 3
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.
In the above circumstances, 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
28.10.2010.
The appeal is allowed.
K.HEMA, JUDGE.
tgs