IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 CRL.A.No. 1326 of 2009() ------------------------ CC.56/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER/COMPLAINT:- ------------------------------------ M/S PREMIER AUTO LEASING, ARAMANA COMPLEX, MUVATTUPUZHA, REPRESENTED BY ITS AUTHORIZED OFFICER AND RECOVERYMANAGER MR. P.K. JANARDHANAN NAIR, AGED 68, S/O. PARAMESWARAN NAIR, VRINDAVANAM HOUSE, KOTHAKULANGARA, ANGAMALY. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): ------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA. 2. M.A. LONAPPAN, AGED 43, S/O. ANTONY MEAKKATTUKULAM HOUSE, CHETTIKULAM P.O., CHALAKUDY. ADV. SRI.MATHEW KURIAKOSE FOR R2 PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1326 of 2009 ----------------------------------------------- Dated 14th January, 2011. J U D G M E N T This appeal arises from an order of acquittal under Section 256(1) of the Code of Criminal Procedure ('the Code' for short). 2. Appellant is the complainant. He filed a complaint against second respondent, alleging offence under Section 138 of the Negotiable Instruments Act. The case was taken on file in the year 2004 and it was posted to different dates over a period of four years. On 23.4.2008, when the case was posted for evidence, complainant was absent and hence, accused was acquitted under Section 256(1) of the Code. 3. Heard. On going through the order under challenge and also the certified copy of the proceeding sheet, I am satisfied that accused was acquitted on a day to which the case was posted for evidence. On a reading of Section 256(1) of the Code and 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. Crl.Appeal No.1326/09 2 In the result, 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 28.2.2011. The appeal is allowed. K.HEMA, JUDGE. tgs