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. 22 of 2010() ---------------------- AGAINST THE JUDGEMENT IN ST.970/2006 of JFCM-VIII, THIRUVANANTHAPURAM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ NARAYANA SARMA, S/O.N.KRISHNA IYER, T.C. 37/1790, WSR-49, MITHRANANDAPURAM, WEST FORT, THIRUVANANTHAPURAM. BY ADV. SRI.P.V.ANIL SMT.R.RAMYA RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. DEEPAK SREEDHAR, S/O.SREEDHARAN, DILIP BHAVAN, THEKKADA, VEMBAYAM.P.O, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 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.22 OF 2010 ----------------------------------- Dated 14th January, 2011 J U D G M E N T This appeal is filed against 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 in the year 2006. The case was posted to different dates for evidence. Complainant was present and accused was absent and the exemption petition was allowed. Trial court found that complainant was not ready to adduce evidence, hence accused was acquitted under section 256(1) of the Code. 3. Heard appellant's counsel. There is no representation for first respondent. On going through the impugned order itself, it is clear that complainant was present on the date on which accused was acquitted. Accused was acquitted only on the ground that complainant was not ready to adduce evidence. A reading of section 256(1) of the Code shows that accused can be acquitted Crl.A. No.22/10 2 under the said section only if complainant is absent. As per the impugned order itself, complainant was present on the date of order of acquittal. 4. The ground shown to acquit the accused was the failure of the complainant to adduce evidence in spite of several opportunity given to him. The accused cannot be acquitted under section 256(1) of the Code if the complainant, who is present in the court is not ready to adduce evidence. The order of acquittal under section 256(1) of the Code can be passed only on the ground of nonappearance of the complainant and no other ground (Vide 2006 (3) KLT 825 G.F.S. Chits & Loans (P) Ltd. Vs. Rajesh). The order under challenge is not sustainable, hence the following order is passed: (i) The order under challenge is set aside. (ii) The trial court is directed to 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.