IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 CRL.A.No. 1324 of 2009() ------------------------ CC.391/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... APPELLANT(S): COMPLAINANT: -------------------------- SUJITH MATHEW, T.V.S.BUILDING, PERISSERI, CHENGANNUR. BY ADV. SRI.P.HARIDAS RESPONDENT(S): STATE/ACCUSED: ----------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GEETHA SASI, UMA SHYLAM, THEKKENADA, CHENGANNUR. ADV. SRI.N.ASHOK KUMAR FOR R2 PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1324 of 2009 ----------------------------------------------- Dated 14th January, 2011. 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 (for short, 'the Code'). 2. Appellant is the complainant. He filed a complaint against second respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file in the year 2007 and accused surrendered long after, pursuant to taking coercive steps. Thereafter, the case was posted for evidence to different dates. On 9.9.2008, when the case was posted for evidence, complainant was absent and hence, accused was acquitted under Section 256(1) of the Code. 3. Heard petitioner's counsel. There is no representation for second respondent. On going through the impugned order and the proceeding sheet, I am satisfied that the order of acquittal was passed on a day to which the case was posted for evidence. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697) and on a Crl.Appeal No.1324/09 2 reading of Section 256(1) of the Code, the order under challenge is illegal. Hence, it is liable to be set aside. 4. In the result, 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 28.2.2011. The appeal is allowed. K.HEMA, JUDGE. tgs