IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 CRL.A.No. 892 of 2011() ----------------------- AGAINST THE JUDGEMENT IN CC.195/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... APPELLANT(S): -------------- P.T.GEORGE,AGED 62,PANAMTHOTTAM HOUSE, KOORALI POST,KOTTAYAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. JIMMY JOSHY,W/O.JOSHY MATHEW, KAVUKKATTU HOUSE,SANAVILLA ADIKKARA, KANJANGAD POST,KAZARCODE-671 315. 2. STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 PUBLIC PROSECUTOR MR. P.A SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.892 OF 2011 ----------------------------------- Dated 9th June, 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. Appellant is the complainant. He filed a complaint alleging offence under section 138 of Negotiable Instruments Act against first respondent herein. Complaint was filed on 19.3.2003 and the case was taken on file on 2.4.2003. Accused entered appearance, plea was recorded and the case was adjourned to several dates. From 9.7.2004 onwards, case was posted for complainant's evidence as last chance. Several postings were given thereafter, and on 16.10.2004 complainant was absent and the counsel reported no instruction. Hence the accused was acquitted under section 256(1) of the Code. 3. Heard both sides. From the certified copy of the proceedings sheet made available at the time of hearing, it is clear that impugned order was not on the day posted for hearing under section 254(1) of the Code, even though the order under Crl.A. No.892/11 2 challenge shows that case was posted for hearing. It is also clear from the proceedings sheet that trial court proceeded to take evidence of complainant and the case was adjourned to different dates for evidence. In such circumstances, the order of acquittal passed under section 256(1)of the Code, at the stage of evidence cannot be sustained. 4. However, it appears that there are laches on the part of appellant to get ready for giving evidence. On hearing both sides I find that appeal can be allowed on condition that petitioner will pay Rs.3,000/- as cost to first respondent within two weeks from today. Hence the following order is passed: 1. The impugned order is set aside. 2. The case is remanded to trial court for fresh consideration and disposal, in accordance with law. 3. This order will take effect only if appellant pays R.3,000/- as cost to first respondent within three weeks from today. If the amount is not paid as directed, this appeal shall be treated as dismissed. 4. If cost is paid as directed above, the parties shall appear before the trial court on 11.7.2011. This appeal is allowed on cost. Sd/- K. HEMA, JUDGE. Sou. //True copy//