IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 CRL.A.No. 1826 of 2007() ------------------------ ST.10/2006 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... APPELLANT(S): COMPLAINANT ------------------------- T.R.SHAHUL HAMEED,AGED 48 YEARS, S/O. THEETHAR RAWTHA, PROPRIETOR, M/S.RAGADH ENTERPRISES, KURISUPALLY ROAD, ERNAKULAM, AND RESIDENT OF RAZEEN VILLA, IRUMPANAM.P.O.ERNAKULAM. BY ADV. SRI.V.VENUGOPALAN NAIR SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): ACCUSED ---------------------- 1. P.USHADEVI, AGED 55 YEARS, W/O. R.VIKRAM,22/1491-A,PUTHUSSERIL HOUSE, COCHIN. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1826 OF 2007 ----------------------------------------------- Dated 1st February, 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 and accused entered appearance. Thereafter, the case was sent for settlement to the Lok Adalat. Since the matter was not settled, the case was posted for evidence. On 25.6.2007, complainant was absent and no proof affidavit was filed in spite of specific order. Therefore, accused was acquitted. 3. At the time of hearing, appellant and counsel were absent. There was no representation. Though first respondent was served, there is no representation. On going through the proceeding sheet and the impugned order, it is clear that the case was posted to different dates and ultimately, Crl.Appeal No.1826/07 2 for evidence, on 25.6.2007. It was on the day on which the case was posted for evidence that the accused was acquitted. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697), such an order of acquittal cannot be sustained. Hence, the order 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 15.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs