IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 CRL.A.No. 154 of 2010() ---------------------------------- AGAINST THE JUDGEMENT IN ST.462/2008 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANT(S): PETITIONER/COMPLAINANT ----------------------------------------------------- SREE GOKULAM CHITS AND FINANCE COMPANY (P) LTD., 356, ARCOT ROAD, KODAMBAKKOM,CHENNAI- 600024, REPRESENTED BY POWER OF ATTORNEY HOLDER A.V.SANTHOSH, S/O.VIJAYABHANU,ASSISTANT MANAGER (BUSINESS), THODUPUZHA BRANCH. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): ACCUSED & STATE ---------------------------------------------- 1. SAJANA, W/O. ARSHAD,VATTAKUNNEL HOUSE, HOUSE NO.18,HOUSING COLONY,PIRAVOM ROAD, MUVATTUPUZHA.P.O,MUVATTUPUZHA. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.S.ASHOK KUMAR. FOR R1 PUBLIC PROSECUTOR MR. P.A SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.154 OF 2010 ----------------------------------- Dated 14th January, 2011 J U D G M E N T This appeal is filed challenging 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 alleging offence under Section 138 of Negotiable Instruments Act. The case was taken on file and it was posted to different dates for evidence. On one such day accused was acquitted, since complainant was not ready to adduce evidence. 3. Heard appellant's counsel. There is no representation for first respondent. A reading of the impugned order does not show that complainant was absent on the date on which accused was acquitted. The reason shown for acquitting the accused was that complainant was not ready to adduce evidence. But whether he was present in the court or not, is not stated in the order. The order of acquittal under section 256(1) of the Code can be passed Crl.A. No.154/10 2 only if the complainant is absent. No order of acquittal can be passed under section 256(1) on the ground that complainant was not ready to adduce evidence (vide also 2006 (3) KLT 825 G.F.S. Chits & Loans (P) Ltd. Vs. Rajesh). 4. At any rate, an order of acquittal under section 256(1) of the Code cannot be passed on a day to which case was posted for evidence. In the light of the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another the order under challenge is illegal and hence it is liable to be set aside. 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 28.2.2011. This appeal is allowed. K. HEMA, JUDGE. Sou.