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. 1169 of 2009() ------------------------ ST.102/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... APPELLANT(S): COMPLAINANT ------------------------- VELLIYATH AGRO INDUSTRIES (P) LTD., 403, PIONEER TOWERS, MARINE DRIVE, ERNAKULAM AND FACTORY THANGALUR, MUNDUR P.O., REPRESENTED BY ITS MANAGING DIRECTOR, A.M.SANOOJ, S/O.MUHAMMED, VELLIYATH BUNGLOW, PURANGA P.O., MALAPPURAM. BY ADV. SRI.P.K.SAJEEV RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. M/S.P.K.ABU SONS, MATTANCHERY, KOCHI, REPRESENTED BY ITS PARTNER, RAFFEEK. 2. RAFFEEK, PARTNER, M/S.P.K.ABU SONS, MATTANCHERY, KOCHI. 3. RIYAS, PARTNER, M/S.P.K.ABU SONS, MATTANCHERY, KOCHI. 4. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.A.CHACKO FOR R1-R3 PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Criminal Appeal No.1169 of 2009 ----------------------------------------------- Dated 27th January, 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 accused did not appear before the court and warrants were issued against him. On 21.2.2006, the complainant was absent and hence, accused was acquitted. 3. Heard learned counsel for appellant. There is no representation for respondents 1 to 3. On hearing appellant's counsel and on going through the proceeding sheet produced along with the appeal memorandum, it is clear that the case was posted for “production” of accused to 21.2.2006, in execution of the non-bailable warrant issued against accused through the Station House Officer. An accused cannot be acquitted, under Section 256(1) of the Code on the day to which the case is posted for production of accused as per a Crl.Appeal No.1169/09 2 warrant issued. Learned counsel for appellant submitted that in the light of the decision reported in Joy Abraham v. Jiju Thomas (2010(2) KLT 735), the order of acquittal under Section 256(1) of the Code is unsustainable. I am satisfied of the submissions made and hence the order under challenge is to be set aside. 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 1.3.2011. The appeal is allowed. K.HEMA, JUDGE. tgs