IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 688 of 2009()
1. P.J.THOMAS, S/O.JOSEPH,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. MATHEW JOSEPH, VAKATHANATH HOUSE,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SRI.JOHN JOSEPH(ROY)
The Hon'ble MRS. Justice K.HEMA
Dated :27/01/2011
O R D E R
K.HEMA, J.
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Criminal Appeal No.688 of 2009
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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 case was taken on file in the year 2006
and it was posted for evidence. Since complainant was absent
and no affidavit was filed in lieu of chief examination, accused
was acquitted under Section 256(1) of the Code.
3. There is no representation for appellant or second
respondent. On going through the impugned order and the
facts stated in the appeal memorandum, it is clear that accused
was acquitted on the date on which the case was posted for
evidence and on failure of the appellant to adduce evidence. In
the light of the decision reported in P.V.Joseph v. State of
Kerala (2010(4) KLT 697), an order of acquittal passed on a
day to which the case is posted for evidence cannot be legally
Crl.Appeal No.688/09 2
sustained. Hence, 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