IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 CRL.A.No. 1232 of 2009() ------------------------ (C.C.NO.1352/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGLAM) APPELLANT(S): COMPLAINANT ------------------------- K.V.KURIAKOSE, MANAGING PARTNER, GLOBAL ENTERPRISES, KOTHAMANGALAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): STATE AND ACCUSED' --------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. IYPE VARGHESE, S/O. IYPE,THAMARAKUDY, VADASSERY, KOTTAPPADY P.O. ADV. SRI.GEO PAUL FOR R2 SRI.SANU MATHEW FOR R2 SRI.C.R.PRAMOD FOR R2 SRI.M.B.SANDEEP FOR R2 SRI.NOEL JOSEPH FOR R2 SRI.K.V.REJANISH FOR R2 BY PUBLIC PROSECUTOR SRI. M.R. VENUGOPAL FOR R1. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No. 1232 of 2009 ----------------------------------------------- Dated 6th October, 2010. JUDGMENT This appeal arises from an order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. 2. The appellant is the complainant. He filed a complaint alleging offence under Section 138 of the Negotiable Instruments Act against the 2nd respondent. The case was taken on file in the year 2003 and the accused appeared and pleaded not guilty. Thereafter, the case was posted for evidence to several dates. On 9.2.2005, the complainant filed a proof affidavit in lieu of chief- examination. He also produced documents. The case was again posted for evidence to different dates. On 20.9.2006, the complainant was absent and there was no representation. The accused was represented. The accused acquitted as per the impugned order. 3. Learned counsel for appellant-complainant submitted that the complainant happened to be absent, since [Crl.A.No.1232/2009] 2 there was a mistake in noting the dates. On the previous three dates of the date of acquittal, there was no sitting. The absence is not willful. The court ought to have adjourned the case, since even the accused was not present on that day. The complainant was vigilantly prosecuting the case for about three years from 2003 onwards till 2006. Though the 2nd respondent is represented by counsel, he had nothing to say in the matter. 4. On hearing both sides and on going through the impugned order, I am satisfied that the case ended in acquittal of the accused not on the two specific days stated in Section 256(1) of the Code. The evidence of the complainant was already adduced in part and the case was posted for evidence on the day on which the accused was acquitted. Such acquittal is illegal in the light of the dictum laid by this Court in P.V.Joseph v. State of Kerala & another (Judgment in Crl. Appeal No.485 of 2007 dated 3.9.2010). The accused cannot be acquitted on the day to which the case is posted for evidence. Hence, the order under challenge is unsustainable and the case is to be remanded to the trial court for fresh consideration and [Crl.A.No.1232/2009] 3 disposal, in accordance with law. In the result, the following order is passed: 1) The order under challenge in this appeal is set aside. 2) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law. 3) Parties shall appeal before the trial court on 20.10.2010. Appeal is allowed. K. HEMA, JUDGE. krs.