IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 1859 of 2010() ------------------------ ST.120/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ AJU.V.P., AGED 31 YEARS, VIRUTHY HOUSE, KODALY, THRISSUR DISTRICT. REP.BY THE POWER OF ATTORNEY HOLDER JAYADEEP K.M., AGED 31 YEARS, S/O MUKUNDAN, KALANGARA HOUSE, URAKAM P.O., THRISSUR DISTRICT. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT(S): ACCUSED ---------------------- 1. C.S.MANOJKUMAR, AGED 31 YEARS, S/O.CHERPUKALARIKKAL SUKUMARAN, KODAKARA P.O., THRISSUR DISTRICT. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1859 of 2010 ----------------------------------------------- Dated 27th January, 2011. J U D G M E N T This appeal arises from an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure('the Code' for short). 2. The appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file in the year 2008 and after appearance of accused, the case was posted for evidence to different dates. On 28.5.2009, the complainant was absent and hence, accused was acquitted under Section 256(1) of the Code. 3. Heard appellant's counsel. Though first respondent was served, there is no representation for him. It is clear from the order under challenge and the submissions made by appellant's counsel that the order under Section 256(1) of the Code was passed on the day to which the case was posted for evidence. In the light of the decision reported in Crl.Appeal No.1859/2010 2 P.V.Joseph v. State of Kerala (2010(4) KLT 697), an order cannot be passed under Section 256(1) on a day to which the case is posted for evidence. Hence, the order under challenge is unsustainable and it is liable to be set aside. 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 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs