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. 140 of 2010() ------------------------------------ AGAINST THE JUDGEMENT IN ST.202/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------------------------------------- K.ASOK NAIR, AGED 46, S/O. K.P.ACHUTHAN NAIR, MANAGING PARTNER, M/S. LAKSHMI MARKETING, SHORNUR-2, KULAPPULLY, OTTAPALAM TALUK, REP. BY HIS ATTORNEY HOLDER, ANIL P., S/O. V.P.NARAYANAN NAIR, AGED 46 YEARS, RESIDING AT ANANDA MANDIRAM, MUNDAKKOTTUKURSI P.O., OTTAPALAM TALUK. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN RESPONDENT(S): ACCUSED AND STATE --------------------------------------------------------------- 1. K.R.DEEPESH, S/O. RAMAKRISHNAN NAIR, PADMA NIVAS, NEAR GRAMINA VAYANASALA, P.O.PAINKULAM, THALAPPILLY TALUK, THRISSUR DIST. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 SRI.K.RAVI (PARIYARATH) FOR R1 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.140 OF 2010 ----------------------------------- 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. Complainant filed a complaint against first respondent before the Magistrate Court alleging offence under section 138 of Negotiable Instruments Act. The case was taken on file in the year 2007 and accused entered appearance and case was posted for evidence to different dates. Complainant did not appear on the day on which accused was acquitted but a petition was filed on his behalf. 3. Heard both sides. On going through the impugned order, it is clear that accused was acquitted on the date to which case was posted for evidence. It appears that complainant was continuously absent when case was posted for evidence. But in the light of the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another accused cannot be Crl.A. No.140/10 2 acquitted on the day to which case is posted for evidence. If the complainant is absent continuously to give evidence, the procedure to be followed is not acquitting the accused under section 256(1) of the Code as indicated in the decision cited above itself. The order under challenge is unsustainable and hence 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. Sd/- K. HEMA, JUDGE. Sou. // True Copy // P.A to Judge