IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 CRL.A.No. 1327 of 2009() ------------------------ CC.10/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... APPELLANT(S): COMPLAINANT ------------------------- M/S. PREMIER AUTO LEASING, ARAMANA COMPLEX, MUVATTUPUZHA, REPRESENTED BY ITS AUTHORISED OFFICER AND RECOVERY MANAGER MR.P.K. JANARDHANAN NAIR, AGED 68, S/O. PARAMESWARAN NAIR, VRINDAVANAM HOUSE, KOTHAKULANGARA, ANGAMALY. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. STATE OF KERALA, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. 2. SALIKUMAR.V.A, AGED 36, S/O. ACHUTHAN, VADAKKAMATTATHIL HOUSE, KALLIPPRAKAD.P.O, MUVATTUPUZHA. ADV. SRI.THOMAS M.JACOB FOR R2 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1327 of 2009 ----------------------------------------------- Dated 9th March, 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 second respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. On the day on which the case was posted for evidence, complainant was absent. Hence, accused was acquitted under Section 256(1) of the Code. 3. Heard appellant's counsel. Even though second respondent entered appearance through counsel, there is no representation for him. Certified copy of the proceeding sheet of the trial court is handed over for perusal. The impugned order does not show whether the case was posted for appearance of accused or for hearing. The trial court does not appear to have applied its mind to verify what was the nature of posting, before accused was acquitted. 4. A perusal of the proceeding sheet shows that Crl.Appeal No.1327/09 2 accused was acquitted on the day to which the case was posted for evidence. Such acquittal is illegal, in the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697). Hence, the impugned order 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 25.4.2011. The appeal is allowed. K.HEMA, JUDGE. tgs