IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1638 of 2007()
1. THRESSIA VINCENT, W/O.LATE VINCENT
... Petitioner
Vs
1. P.LALI, S/O.O.PARRAMU,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.P.SIVARAJ
For Respondent :SRI.P.N.MOHANAN
The Hon'ble MRS. Justice K.HEMA
Dated :12/10/2010
O R D E R
K.HEMA, J.
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Crl. Appeal No.1638 of 2007
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Dated 12th October, 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. The appellant, who is the legal heir and widow of
deceased complainant, filed this appeal. The deceased/
complainant filed a complaint against first respondent, alleging
offence under Section 138 of the Negotiable Instruments Act, as
early as in 2003 and the case was being prosecuted, for a long
period of about 3 years.
3. The deceased/complainant was a chronic cancer
patient and petitions were filed on different dates, since he
could not appear in court during trial. Ultimately, on 13.9.2006,
he died, as evidenced by Annexure A2. But, the court acquitted
the accused on 1.7.2006, when the case was posted for
evidence, holding that the presence of complainant is very
much necessary to proceed with the case. The court also found
that the delay in disposal of the case will not be in the interests
of justice and that the case cannot be adjourned indefinitely for
evidence due to absence of complainant and that the case is an
Crl.Appeal No1638/07. 2
old one. Hence, the accused was acquitted under Section 256
(1) of the Criminal Procedure Code.
4. When the case was called, the appellant’s counsel
was absent. The respondent’s counsel is present. On going
through the impugned order itself, it is clear that the case was
instituted in the year 2003 and the accused was acquitted after
about 3 years, on 1.7.2006, on the date to which 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 either of 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
day posted for evidence is not a day falling under Section 256
(1) and hence, the court shall not acquit an accused on any
such day.
6. The acquittal of an accused under Section 256(1)
on a day to which the case is posted for evidence is illegal and
Crl.Appeal No1638/07. 3
without jurisdiction, as held by this court in P.V.Joseph v.
State of Kerala and another (order dated 3.9.2010 in
Crl.A.No.485/2007). Hence, the order under challenge is liable
to be set aside and I do so. I make it clear that if the legal heir
of the deceased/ complainant has not filed any petition before
the trial court, it is left to her to take appropriate steps to
continue the proceedings.
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
25.11.2010.
The appeal is allowed.
K.HEMA, JUDGE.
tgs