IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 CRL.A.No. 229 of 2010() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.85/2010 Dated 29/01/2010 ST.487/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I,OTTAPPALAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ SETHUMADHAVAN, AGED 41 YEARS, S/O.RAMA KRISHNA MENON, PURAKKATTU BHAVANAM, AMBALAPPARA II VILLAGE, OTTAPALAM TALUK. BY ADV. SRI.SANTHEEP ANKARATH SMT.BINDU GEORGE RESPONDENT(S): STATE & ACCUSED ----------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SAJAN KOTTAKULANGARA, AGED 32 YEARS, S/O.SIVASANKARAN, RASNA NIVAS, CHUNANGAD P.O., AMBALAPPARA II VILLAGE, OTTAPALAM TALUK. ADV. SMT.T.D.RAJALAKSHMI FOR R2 SRI.R.SREEHARI FOR R2 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.229 OF 2010 ----------------------------------- Dated 7th January, 2011 J U D G M E N T This appeal is filed against order of acquittal passed under section 256(1) of Cr.P.C. 2. Appellant filed a complaint against second respondent alleging offence under section 138 of Negotiable Instruments Act. The case was taken on file in the year 2008 and case was posted for evidence to 16.11.2009. On that day complainant was absent and hence accused was acquitted u/s.256(1) Cr.P.C. 3. A reading of Section 256(1) of the Code will show that the order of acquittal can be passed only on the two days specified in the said section. Hence, the order of acquittal passed on the day to which case was posted for evidence is not legally sustainable, as held in the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another. Hence the order under challenge is not sustainable. In the result the following order is passed: (i) The order under challenge is set aside. Crl.A. No.229/10 2 (ii) The trial court is directed to take the case on file and dispose of the same in accordance with law. (iii) The parties shall appear before the trial court on 24.1.2011. This petition is allowed. K. HEMA, JUDGE. Sou.