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. 1325 of 2009() ------------------------ ST.348/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT(S): -------------- ROJI THOMAS. S/O.LATE P.J.THOMAS PARIYARATHIL HOUSE, DEVALOKAM PO., MUTTAMBALAM VILLAGE, KOTTAYAM. BY ADV. SRI.C.S.MANILAL RESPONDENT(S): --------------- 1. REMA PRABHU, W/O.SIVANANDA PRABHU PRABHUS VILLA, THIRUNAKKARA, KOTTAYAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.THAMBAN FOR R1 SRI.R.REJI FOR R1 SRI.B.BIPIN FOR R1 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.1325 of 2009 ----------------------------------------------- Dated 14th January, 2011. J U D G M E N T This appeal arises from an order of acquittal under Section 256(1) of the Code of Criminal Procedure ('the Code' for short). 2. Appellant is the complainant. He filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file as early as in 2007 and it was posted for evidence to different dates. The chief examination of the complainant was recorded and for cross examination and further evidence, the case was posted from 21.1.2008 onwards to different dates. On 30.6.2008, the complainant was absent and hence, accused was acquitted under Section 256(1) of the Code. 3. Heard both sides. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697) and in view of the language of Section 256(1) of the Code, the order under challenge is unsustainable, the order of acquittal having been made on the day to which the case was posted for evidence. Hence, the order under challenge is liable to be set Crl.Appeal No.1325/09 2 aside and I do so. 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