ISMAIL K. Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal arises from an order of acquittal under Section 256 (1) of the Code of Criminal Procedure.

(2.) The appellant filed an appeal against the 2nd respondent herein, alleging offence under Section 138 of Negotiable Instruments Act. The case was taken on file as early as in 2007, and summons was issued to the accused. On 16.12.2008, the complainant filed proof affidavit and the case was posted for evidence to 14.1.2009. On 14.1.2009, the complainant was absent. The accused was also absent. But the Court acquitted the accused, since the complainant was absent.

(3.) Learned Counsel for appellant submitted that the complainant was vigilant in prosecuting the case on all posting dates. Complainant was present in court over a period of two years from 2007 up to 14.12.2008. It is only on 14.1.2009, he happened to be absent. Even the accused was not present on the day and the complainant had also filed a proof affidavit on the previous posting date. But, the court ignored all these facts and acquitted the accused under Section 256 (1), Cr.P.C. The court ought not to have acquitted the accused, but an opportunity ought to have been given to the complainant, it is submitted.