IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 15TH MARCH 2011 / 24TH PHALGUNA 1932 CRL.A.No. 145 of 2011() ----------------------- ST.386/2009 of JFCM IV, KOLLAM. .................... APPELLANT(S): COMPLAINANT ------------------------- DEVARAJAN J., KUNNUVILA PADINJATTATHIL, PUNNUKKANNUR, ALUMOODU P.O., KOLLAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. RAJENDRAN S., VIJAYA BHAVANAM, NJANAKANA, OCHIRA P.O., KARUNAGAPPALLY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.145 of 2011 ----------------------------------------------- Dated 15th March, 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. The appellant is the complainant. He filed a complaint against first respondent before the Magistrate Court, alleging offence under Section 138 of the Negotiable Instruments Act. The case was posted for evidence on 31.12.2010 as last chance, after appearance of accused. The chief affidavit was also filed, it is submitted. But, on the date on which appellant happened to be absent, accused was acquitted. 3. Heard appellant's counsel. The first respondent did not appear in spite of service of notice. On going through the impugned order, it can be seen that accused was acquitted under Section 256(1) of the Code on the day to which the case was posted for evidence. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697), the order Crl.Appeal No.145/11 2 under challenge is unsustainable. In the above circumstances, the order of acquittal passed under Section 256(1) of the Code is set aside. Hence, 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 25.4.2011. The appeal is allowed. K.HEMA, JUDGE. tgs