IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 CRL.A.No. 1709 of 2010() ------------------------ ST.58/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS - II,ETTUMANUR .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ N.V.JOSEPH, S/O.VARKEY, MUTTATHUPADOM HOUSE, GANDHINAGAR P.O., KOTTAYAM. BY ADV. SRI.KURIAN CHEMBOLA SMT.MIJI JOHN RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. P.J.CHACKO @ THANKACHAN, PAYYANATTU HOUSE, VILLOONNI P.O., ARAPPOOKKARA, KOTTAYAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1709 OF 2010 ----------------------------------- Dated 14th February, 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 filed a complaint before the Magistrate Court alleging offence under section 138 of Negotiable Instruments Act. Case was taken on file and accused was exempted from personal appearance and the case was posted for evidence to 14.12.2009. Later, case was transferred to Judicial First Class Magistrate Court- II with a direction that party shall appear before the transferee court on 20.3.2010. The case was posted to different dates and on 28.5.2010, accused was acquitted under section 256(1) of the Code, stating that complainant was absent. The said order is under challenge in this appeal. 3. Heard appellant's counsel. First respondent did not enter appearance in this appeal in spite of service of notice. Perused Crl.A. No.1709/10 2 the records. In the impugned order, the trial court found that the case was called for “hearing” on the day on which accused was acquitted under section 256 of the Code. The proceedings sheet reveals that case was posted to 23.1.2010 for “appearance” of the parties and thereafter, it was adjourned, without mentioning for what purpose the case was posted for. From 23.1.2010 onwards, upto the date on which impugned order was passed on 28.5.2010, both sides were absent. 4. There is nothing in the proceedings sheet to show whether accused appeared before Judicial First Class magistrate Court-II, after the transfer. On 23.1.2010, it is recorded that both the parties were absent. The records in this case do not reveal that case was posted for “hearing”. On the other hand, on 12.10.2009 accused pleaded not guilty and the case was posted for “evidence” to 14.12.2009. From the records, it does not appear that impugned order was passed on either of the days specified in section 256 of the Code. Accused can be acquitted under section 256(1) of the Code, if on the date to which case is posted for appearance of accused, or to any subsequent day to which case is posted for hearing, complainant remains absent. Hence, the order under challenge is unsustainable. In the result, Crl.A. No.1709/10 3 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 21.3.2011. The appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge