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. 391 of 2003() ----------------------- CC.244/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------- K.SASEENDRA BABU, SREYAS, KUREEPUZHA KAVANAD P.O., KOLLAM-3. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. N.RAJASEKHARAN NAIR, SENIOR GRADE ASSISTANT (O), KERALA MINERALS AND METALS LIMITED, TIO2 PIGMENT UNIT, CHAVARA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.PRATHEESH.P FOR R1 PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR 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.391 of 2003 ----------------------------------------------- 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 as early as in 2000. The case was posted for evidence to different dates and in the year 2002, the accused was acquitted under Section 256(1) of the Code, since the complainant was absent. 3. There is no representation for appellant or first respondent at the time of hearing. On going through the impugned order itself, it is clear that the case was posted for evidence on the day on which accused was acquitted under Section 256(1) of the Code. An accused can be acquitted under Section 256(1) only on the two days specified in the said section. The accused cannot be acquitted, invoking Section 256(1) on the day to which the case is posted for evidence, as Crl.Appeal No.391/03 2 held in P.V.Joseph v. State of Kerala (2010(4) KLT 697). Hence the order under challenge is unsustainable and it 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 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs