IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 CRL.A.No. 225 of 2010() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.79/2010 Dated 28/01/2010 CC.729/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ M.K.SIRAJ, AGED 28 YEARS, S/O.KARIM, MADHAVANTHAZHAM HOUSE, S.R.M.ROAD, ERNAKULAM, KOCHI-682 018. BY ADV. SRI.K.J.JOSEMON SRI.MATHEW SKARIA SRI.JOY JOSEPH (MUNDACKAL) RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. SOBHA, AGED ABOUT 30 YEARS, W/O.ANTONY, KATTOOKARAN HOUSE, 24-MURI COLONY, S.R.M.ROAD, ERNAKULAM, KOCHI-682 018. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.J.SANTHOSH FOR R1 PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.225 OF 2010 ----------------------------------- Dated 7th January, 2011 J U D G M E N T This appeal is filed against order of acquittal under section 256(1) of Cr.P.C. 2. Appellant filed a complaint against first respondent alleging offence under section 138 of Negotiable Instruments Act. The case was taken on file on 18.6.2009 and the case was posted for evidence on 17.9.2009 and 21.11.2009. But the complainant and the counsel were absent on 21.11.2009 and hence the accused was acquitted under section 256(1) of the Code. 3. On going through the impugned order and the proceedings sheet produced in this case I am satisfied that the accused was acquitted on a day to which case was posted for evidence. The case was posted to 17.9.2009 for evidence as last chance. Thereafter case was adjourned to two dates. In the light of the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another the order of acquittal under section 256(1) of the Code on the day to which case is posed for Crl.A. No.225/10 2 evidence is illegal. Hence the impugned order is not legally 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 24.1.2011. The appeal is allowed. K. HEMA, JUDGE. Sou.