IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 CRL.A.No. 1536 of 2009() ------------------------ AGAINST THE JUDGEMENT IN CC.309/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... APPELLANT(S): COMPLAINANT ------------------------- BRD SECURITIES LTD., IST FLOOR, T.K.M COMPLEX, KOKKALAI, THRISSUR, REP. BY ITS DIRECTOR, THOMAS AUGUSTINE.P, S/O. AUGUSTINE, PUTHENPURACKAL HOUSE, VELUPADAM.P.O, THRISSUR. BY ADV. SRI.K.N.PADMAKUMAR RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. SHAJITHA, W/O. RAZAK, PATHIPARAMBIL HOUSE, PALLAM.P.O, CHERUTHURUTHY, THRISSUR. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1536 OF 2009 ----------------------------------- Dated 20th January, 2011 J U D G M E N T This appeal arises from the order of acquittal passed under section 256(1) of Code of Criminal Procedure ('the Code' for short). 2. Appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court alleging offence under section 138 of Negotiable Instruments Act. On the ground that complainant was absent. There was no representation for appellant or accused, though notice was served on first respondent. 3. On going through the appeal memo, I find that accused was acquitted without issuing summons to him. It is clear from the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another that accused can be acquitted only on the two days specified under section 256(1) of the Code. In a case, in which accused has not even appeared on summons, he ought not have been acquitted, invoking section 256(1) of the Crl.A. No.1536/0 2 Code, since such day is not either of the two days specified in section 256(1) of the Code. Hence the order under challenge is unsustainable. In the result the following order is passed. (i) The order under challenge is set aside. (ii) The trial court 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 07.03.2011. The appeal is allowed. K. HEMA, JUDGE. Sou.