Ismail K. vs State of Kerala

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

The appellant filed an appeal against the 2nd respondent herein, alleging offence u/s 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.

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 had also filed a proof affidavit on the previous posting date. But, the court ignored all these facts and acquitted the accused u/s 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.

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".

I have already held today in P.V. Joseph v. State of Kerala and Anr. Crl. A. No. 485 of 2007 that an accused cannot be acquitted on a day to which the case is posted for evidence u/s 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.

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 v. State of Kerala and Anr. (Crl. A. No. 485 of 2007), the order under challenge is not sustainable.

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 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.