IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 CRL.A.No. 1662 of 2004() ------------------------ AGAINST THE JUDGEMENT IN CC.390/2003 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT(S): COMPLAINANT ------------------------------------------ GODAVARI MANURE AND INPUTS LTD., MADHAVASSERIL BUILDINGS, KANJIKKUZHI, KOTTAYAM-4, REPRESENTED BY ITS DIRECTOR, P.K.JOSEPH. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): ACCUSED ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. K.BALAN, FERTILISER DEALER, KANGAIRASERY HOUSE, ARIYATTUR P.O., MALAPPURAM DISTRICT. PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1662 OF 2004 ----------------------------------- Dated 16th June, 2011 J U D G M E N T This appeal is filed against an order of acquittal passed under section 256(1) of the Code of Criminal Procedure ('the Code' for short). 2. Appellant is the complainant who filed a complaint against second respondent alleging offence under section 138 of Negotiable Instruments Act. The complaint was filed in 2003 and summons was issued to accused. But on the date on which case was taken up, complainant was absent and accused was acquitted, since steps were not taken. 3. Service was complete. But there is no representation for second respondent. Learned counsel for appellant submitted that accused had not entered appearance. The case was transferred from Chief Judicial Magistrate Court to Judicial First Class Magistrate Court -II. There was no sitting in the transferee court for a very long time and hence complainant did not know about posting date. Hence he was absent. Crl.A. No.1662/04 2 4. On hearing petitioners counsel and on going through the impugned order, it is clear that accused was acquitted since no steps were taken by complainant. Thus, the accused was acquitted, even prior to appearance of accused, such acquittal is wrong. In the light of the decision reported in 2010(4) KLT 697 P.V. Joseph Vs. State of Kerala and another accused can be acquitted under section 256(1) of the Code on the ground of non- appearance of complainant on the two days specified in the said section. Hence, the order under challenge is unsustainable. In the result, the following order is passed: 1. The impugned order is set aside. 2. Case is remanded to trial court for fresh disposal in accordance with law. 3. Parties shall appear before the trial court on 25.7.2011. Appeal is allowed. K. HEMA, JUDGE. Sou.