G. Girishkumar vs Jayanthy, Desk Cleaner and Stat of Kerala

K. Hema, J.—This appeal arises from an order of acquittal passed u/s 256(1) of the Code of Criminal Procedure.

The appellant is the complainant. He filed a complaint against the 1st respondent herein alleging offence u/s 138 of the Negotiable Instruments Act. The accused entered appearance through counsel on issuance of summons and the case was posted for his appearance. The accused appeared and bail was granted and the case was posted for "evidence" to 27.1.2007. On that day, the complainant was absent and there was no representation. Therefore, the accused was acquitted u/s 256(1) of the Code.

According to the appellant, the complainant was vigilant in prosecuting the case from the very inception. The trial court, therefore, ought to have adjourned the case by exercising its discretion in Section 256(1) of the Code since large amount is involved in this case.

There was no representation for accused/1st respondent. On hearing learned Counsel for appellant and learned Public Prosecutor and on going through the proceeding sheet produced along with the appeal, it is clear that the accused was acquitted on the day to which the case was posted for "evidence". As per Section 256(1) of the Code, accused can be acquitted only on the two types of days specified therein. Such days do not include the day to which the case is posted for "evidence". I have already held in P.V. Joseph v. State of Kerala and Anr. Crl. A. No. 485 of 2007 that an accused cannot be acquitted u/s 256(1) of the Code on a day to which the case is posted for "evidence". Such an order will be illegal and not consistent with the provision contained in Section 256(1) of the Code.

Applying the same dictum in the above case, I find that the order under challenge in this appeal is not sustainable. The case is to be remanded for fresh consideration and disposal, in accordance with law. Hence 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) The appellant shall report before the trial court on 4.10.2010.

The appeal is allowed as above.