IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1429 of 2004()
1. M/S. USHA INTRNATIONAL LTD.,
... Petitioner
Vs
1. M.SAINUDEEN, PROPRIETOR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY PUBLIC
For Petitioner :SRI.A.V.THOMAS
For Respondent :SRI.T.A.UNNIKRISHNAN
The Hon'ble MRS. Justice K.HEMA
Dated :09/09/2010
O R D E R
K.HEMA, J.
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Crl.Appeal No.1429 of 2004
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Dated 9th September, 2010.
J U D G M E N T
This appeal arises from the order of acquittal passed
under Section 256(1) of the Code of Criminal Procedure.
2. The appellant is the complainant, who filed a
complaint against first respondent, alleging offence under Section
138 of the Negotiable Instruments Act. On 7.2.2004, when the
case was posted for evidence, the complainant was absent and
hence, the accused was acquitted under Section 256(1) of the
Code. Hence, this appeal.
3. The first respondent was served, but there is no
representation for him. On hearing learned counsel for appellant
and on going through the order under challenge, it is clear that
the case ended in acquittal on the day on which the case was
posted for “evidence”. In the light of the decision reported in
P.V.Joseph v. State of Kerala and another (order dated
3.9.2010 in Crl.A.No.485/2007) an accused cannot be acquitted
on the day on which the case is posted for evidence. A plain
reading of Section 256(1) also shows that the complainant can be
Crl.A. NO. 1429/04 2
acquitted only on the two types of days specified in the said
section, which do not include the day to which the case is posted
for evidence. Hence, the order under challenge is not sustainable
in law.
4. 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
18.10.2010.
The appeal is allowed as above.
K.HEMA, JUDGE.
tgs