IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 688 of 2009() ----------------------- ST.2544/2006 of JUDL. MAGISTRATE OF FIRST CLASS I, KOTTAYAM .................... APPELLANT(S): PETITIONER/COMPLAINANT: ------------------------------------- P.J.THOMAS, S/O.JOSEPH, PUTHUPARAMBIL, KOTHANALLOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): STATE AND ACCUSED: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MATHEW JOSEPH, VAKATHANATH HOUSE, KAIRALI NAGAR, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. ADV. SRI.JOHN JOSEPH(ROY) FOR R2 PUBLIC PROSECUTOR SRI.P.A.SALAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.688 of 2009 ----------------------------------------------- Dated 27th January, 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 in the year 2006 and it was posted for evidence. Since complainant was absent and no affidavit was filed in lieu of chief examination, accused was acquitted under Section 256(1) of the Code. 3. There is no representation for appellant or second respondent. On going through the impugned order and the facts stated in the appeal memorandum, it is clear that accused was acquitted on the date on which the case was posted for evidence and on failure of the appellant to adduce evidence. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697), an order of acquittal passed on a day to which the case is posted for evidence cannot be legally Crl.Appeal No.688/09 2 sustained. Hence, 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 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs