IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 CRL.A.No. 780 of 2009() -------------------------------- AGAINST THE JUDGEMENT ST.100/2007 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOZHIKODE ................................... APPELLANT(S): APPELLANT/COMPLAINANT ---------------------------------------------------------------- K.VINODKUMAR, AGED 37 YEARS, S/O.ANDIKUTTY, KANNANKANDI HOUSE, P.O.KANNANKARA, CHELANNUR. BY ADV. SMT.T.KAMALA MENON RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. E.M.DILEEP KUMAR, AGED 46 YEARS, EDAYATH MEETHAL HOUSE, KANNAKARA, (CHELANNUR), KOZHIKODE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. P.A SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No. 780 OF 2009 ----------------------------------- Dated 20th January, 2011 J U D G M E N T This appeal arises from the order of acquittal passed under section 256(1) of Code of Criminal Procedure ('the Code' for short). 2. Appellant is the complainant. He filed a complaint against first respondent before Magistrate court alleging offence under section 138 of Negotiable Instruments Act. The case was taken on file and summons was issued to accused. He entered appearance and plea was recorded and case was posted for evidence to two consecutive postings. The complainant was absent continuously and hence the accused was acquitted under section 256(1) of the Code. 3. Appellant's counsel is absent. There is no representation for appellant. Though first respondent/accused was served, there was no representation for first respondent also. A reading of proceedings sheet, produced along with appeal memo will go to show that though complainant was absent on the day on which Crl.A. No.780/09 2 accused was acquitted, an application was filed by the counsel. But the court found that no medical certificate was produced along with application. It is also clear that case was posted for evidence to two consecutive postings. As per the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another an order of acquittal passed on the day to which case is posted for evidence cannot be sustained. Hence the order under challenge is not sustainable. In the result the following order is passed: (i) The order under challenge is set aside. (ii) The trial court 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 07.03.2011. The appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge.