IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 CRL.A.No. 2314 of 2010() ------------------------ ST.394/2008 of JUDICIAL MAGISTRATE OF FIRST CLASS-II,MAVELIKKARA .................... APPELLANT(S): COMPLAINANT ------------------------- SABARI BANKERS, NOORANAD, REP. BY ITS MANAGER, G.SURENDRAN, AGED 58, S/O.K.V.GOPALAN, NALLAVEETTIL PADEETTATHIL, ERUMAKUZHY MURI, PALAMEL VILLAGE, NOORANAD. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. LEELA, THENGINTHEKKETHIL, PULIMEL, PATTOOR P.O., NOORANAD, MAVELIKKARA. PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.2314 of 2010 ----------------------------------------------- Dated 13th January, 2011. J U D G M E N T This appeal arises from an order of acquittal. 2. The appellant filed a complaint against second respondent herein, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file and summons was issued to accused. The case was thereafter, posted for evidence. Several adjournments were granted for adducing evidence. On 11.2.2010, the complainant was absent. No application was filed and therefore, accused was acquitted. 3. Learned counsel for appellant pointed that accused was acquitted on the date on which the case was posted for evidence. There is no representation for first respondent, though notice was served. On a reading of Section 256 of the Code of Criminal Procedure, it is clear that accused cannot be acquitted on the ground of non-appearance of complainant on the day to which the case is posted for evidence. (vide P.V.Joseph v. State of Kerala (2010(4) KLT 697). Hence, the order under challenge is unsustainable. Crl.Appeal No.2314/2010 2 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 25.2.2011. The appeal is allowed. K.HEMA, JUDGE. tgs