IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 CRL.A.No. 1740 of 2009() ----------------------------------- AGAINST THE JUDGEMENT IN ST.787/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY ................................... APPELLANT(S): PETITIONER/COMPLAINANT: ----------------------------------------------------------------- M/S.KERALA CHITTY FUND, SULTHAN BATHERY BRANCH, REP.THROUGH THE POWER OF ATTORNEY BY ITS MANAGER BAHULEYAN, AGED 39 YEARS, S/O.BHASKARAN. BY ADV. SMT.VIJAYAKUMARI RESPONDENT(S): --------------- 1. NIZAR.A., AGED 30 YEARS, ANIYAPRAVAN HOUSE, NADAVAYAL, KANKIYAMBETTA, WAYANAD. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.RAMACHANDRAN FOR R1 SRI.K.MOHAMMED FAISAL NAHA FOR R1 SRI.S.SREEDEV FOR R1 PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.1740 OF 2009 ----------------------------------- Dated 20th January, 2011 J U D G M E N T This appeal arises from 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. After completion of evidence, case was posted for hearing the complainant, on which day, the appellant and his counsel were absent. Accused was acquitted under section 256(1) of the Code since complainant was absent. 3. There is no representation for appellant. Learned counsel for first respondent submitted that in the light of the decision reported in 2010 (4) KLT 697 P.V. Joseph Vs. State of Kerala and another his hands are tied. The order under challenge cannot be sustained, since the day on which accused was acquitted was not on either of the two days specified in Crl.A. No.1740/09 2 section 256(1) of the Code. 4. The accused having been acquitted not on the two days specified in section 256(1) of the Code, the order under challenge cannot be legally sustained, and hence it is liable to be set aside. 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 07.03.2011. The appeal is allowed. K. HEMA, JUDGE. Sou.