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. 1747 of 2010() ------------------------ ST.1846/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... APPELLANT(S): PETITIONER/COMPLAINANT: ------------------------------------- KRISHNAN, S/O.NARAYANAN EZHUTHACHAN, AGED 60 YEARS, PUTHENVEEDU, THENUR, PARALI, PALAKKAD. BY ADV. SRI.K.ANAND RESPONDENT(S): ACCUSED AND STATE: --------------------------------- 1. P.K.MADHUSUDHANAN, S/O.K.C.PRABHAKARAN, AGED 40 YEARS, VALIYAPARAMBIL HOUSE, ODANNUR, PARALI, PALAKKAD. 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SAJAN VARGHEESE K. FOR R-1 SRI.LIJU. M.P FOR R-1 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.1747 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 2009 and appellant was absent on the day on which the case was posted for evidence. The appellant's counsel filed a petition for excusing appellant's absence, but the said petition was dismissed and accused was acquitted. 3. Heard both sides. Admittedly, the case was posted for evidence, on the date on which accused was acquitted under Section 256(1) of the Criminal Procedure Code. On a reading of Section 256(1) of the Code and in the light of the decision reported in P.V.Joseph v. State of Kerala (2010 (4) KLT 697), the order under challenge is unsustainable. Hence, the order is liable to be set aside. Crl.Appeal No.1747/2010 2 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