IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 27TH JANUARY 2011 / 7TH MAGHA 1932 CRL.A.No. 608 of 2003() ------------------------------------ AGAINST JUDGMENT IN CC.977/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD ..................................... APPELLANT(S): --------------------- K.C. SHAJU, KOLLANNUR VEETTIL, KIZHUR, KUNNAMKULAM. BY ADV. SRI.DEEPU THANKAN RESPONDENT(S): --------------------------- 1. K.B. SANU, S/o. KUNNATH BALAN, NEAR FIRE STATION, KAKKAD, KUNNAMKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. P.A. SALIM FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.608 OF 2003 ----------------------------------- Dated 27th January, 2011 J U D G M E N T This appeal is filed challenging the order of acquittal passed under section 256(1) of Code of Criminal Procedure ('the Code' for short). 2. Appellant is the complainant he filed a complaint against first respondent before the Magistrate Court alleging offence under Section 138 of Negotiable Instruments Act. The complaint was taken on file in the year 1999. Accused entered appearance and his plea was recorded. Case was posted over a period of three years to different dates for evidence. On 28.10.2002 complainant was absent and hence accused was acquitted under section 256(1) of the Code. 3. Appellant and counsel were absent when the case is called for hearing. There was no representation for appellant. First respondent also did not appear, though notice was served on him. On going through the order under challenge, proceedings sheet and the records in this case, it is clear that case was posted Crl.A. No.608/03 2 for evidence on the date on which accused was acquitted under section 256(1) of the Code. There is nothing on record to show that case was posted for hearing under section 254(1) of the Code. In such circumstances, the order under challenge is not sustainable in the light of the dictum laid down in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another. In the result the following order is passed: (i) The order under challenge is set aside. (ii) The trial court 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 01.03.2011. This appeal is allowed. K. HEMA, JUDGE. Sou.