IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 CRL.A.No. 2290 of 2010() ------------------------ ST.258/2009 of J.F.C.M. IV, KOLLAM. .................... APPELLANT(S): COMPLAINANT ------------------------- STATE BANK OF INDIA, KADAVOR BRANCH, KOLLAM, REPRESENTED BY ITS PRESENT MANAGER, A.M.SHEREEF. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. BABURAJ, S/O.MADHAVAN, MADHAVA VILASOM, MATHILIL POST, KADAVOOR, KOLLAM-691601. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.N.SUNIL JOSEPH FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.2290 of 2010 ----------------------------------------------- Dated 8th March, 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 posted for evidence as last chance on 2.8.2010, but complainant did not appear. Hence, accused was acquitted. 3. Heard both sides. On going through the order under challenge itself, it is clear that the accused was acquitted on the date to which the case was posted for evidence. There was no representation also. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697), the order of acquittal passed on the day to which case is posted for evidence is not consistent with the language of Section 256 of the Code and hence, it is illegal. The order under challenge is Crl.Appeal No.2290/2010 2 liable to be set aside and I do so. 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 25..4..2011. The appeal is allowed. K.HEMA, JUDGE. tgs