IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 CRL.A.No. 2291 of 2010() ------------------------ CC.121/2009 of J.F.C.M. IV, PUNALUR. .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ SUVARNNAKUMARY, W/O.MOHANA KUMAR, SREELAKSHMY HOUSE, ARAMPUNNA, ELAMBAL P.O., PUNALUR, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. JYOTHY KUMAR, S/O.GOPALA PILLAI, NAVA LAKSHMY ASSOCIATES, CHEMMANTHOOR, PUNALUR, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.BABU PAUL FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.2291 of 2010 ----------------------------------------------- Dated 8th 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. On the date on which the case was posted for evidence, complainant was absent. Hence, accused was acquitted. 3. Though notice was issued to first respondent/accused, there is no representation. Heard appellant's counsel. On a reading of the order under challenge, it is seen that the case was posted for evidence, on the day to which the accused was acquitted. It appears that accused was acquitted since complainant was absent. In the light of the decision reported in P.V.Joseph v. State of Kerala (2010(4) KLT 697), the order under challenge is unsustainable. Hence, Crl.Appeal No.2291/10 2 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