IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 CRL.A.No. 1429 of 2004() ------------------------ CC.159/2003 of JUDL.MAGISTRATE OF FIRST CLASS-III(MOBILE), ERNAKULAM .................... APPELLANT(S): COMPLAINANT ------------------------- M/S. USHA INTRNATIONAL LTD., GCDA WAREHOUSING COMPLEX, GANDHI NAGAR, KADAVANTHARA, COCHIN 682 020, REPRESENTED BY THE POWER ATTORNEY HOLDER G.SHANKAR S/O. GOPALAKRISHNAN, COMMERCIAL-IN-CHARGE. BY ADV. SRI.A.V.THOMAS SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.V.M.KURIAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. M.SAINUDEEN, PROPRIETOR, POPULAR TRADERS, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.A.UNNIKRISHNAN FOR R1 SRI.K.SATHEESH KUMAR FOR R1 PUBLIC PROSECUTOR SMT.C.M.CHARISMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ---------------------------------------------- Crl.Appeal No.1429 of 2004 ---------------------------------------------- Dated 9th September, 2010. J U D G M E N T This appeal arises from the order of acquittal passed under Section 256(1) of the Code of Criminal Procedure. 2. The appellant is the complainant, who filed a complaint against first respondent, alleging offence under Section 138 of the Negotiable Instruments Act. On 7.2.2004, when the case was posted for evidence, the complainant was absent and hence, the accused was acquitted under Section 256(1) of the Code. Hence, this appeal. 3. The first respondent was served, but there is no representation for him. On hearing learned counsel for appellant and on going through the order under challenge, it is clear that the case ended in acquittal on the day on which the case was posted for “evidence”. In the light of the decision reported in P.V.Joseph v. State of Kerala and another (order dated 3.9.2010 in Crl.A.No.485/2007) an accused cannot be acquitted on the day on which the case is posted for evidence. A plain reading of Section 256(1) also shows that the complainant can be Crl.A. NO. 1429/04 2 acquitted only on the two types of days specified in the said section, which do not include the day to which the case is posted for evidence. Hence, the order under challenge is not sustainable in law. 4. 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 18.10.2010. The appeal is allowed as above. K.HEMA, JUDGE. tgs