IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 CRL.A.No. 51 of 2009() ---------------------- (S.T.NO.2782/2006 OF JFCM I, KOTTAYAM) PETITIONER/COMPLAINANT ------------------------------------- OUSEPH ABRAHAM, MAMMOTTIL HOUSE, EDAPARIYARAM P.O., ELANTHOOR, PATHANAMTHITTA. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. GIRISHKUMAR V.K. @ SATHYAN, S/O.KESAVAN, MUNDEPARAMBIL HOUSE, VELOOR P.O., (PATHINANCHIL KADAVIL), KOTTAYAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal.No.51 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the complainant is to the order of Judicial First Class Magistrate I, Kottayam dated August 8, 2008 dismissing the complaint for the absence of the complainant and acquitting the accused under Section 256(1) Cr.P.C. 2. The facts in brief are these : The complaint filed a private complaint before the trial court against the second respondent/accused alleging the offence punishable under Section 138 of Negotiable Instruments Act. When the case was posted for filing proof affidavit on August 20, 2008, the complainant was absent. Therefore, the trial court dismissed the complaint and acquitted the accused. The complainant has now come up in appeal challenging the said order of the trial court. 3. The counsel for the appellant submitted that on August 20, 2008 the complainant was laid up and that therefore he was unable to Crl.Appeal.No.51/2009 Page numbers appear before the trial court and that the petition to excuse his absence was dismissed by the trial court. 4. In this appeal there was no representation for the first respondent/accused. Learned counsel for the complainant produced a certified copy of the order sheet of the case before the trial court. It is seen that when the case was posted on 10/7/2007, the accused was absent. It was posted to 30/07/2007 for filing the affidavit. On 30/07/2007 both parties were absent and the case was adjourned to 28/08/2008 for filing the proof affidavit . Though the counsel for the complainant applied to excuse his absence, it was dismissed by the trial court. 5. On going through the records and having heard the submissions made by the counsel for the appellant, I feel that the complainant should be given an opportunity to prove his case before the trial court and that therefore the appeal can be allowed. In the result, the appeal is allowed. The impugned order of the trial court dismissing the complaint is set aside. The trial court is directed to take the complaint on file and proceed in accordance with Crl.Appeal.No.51/2009 Page numbers law. This is a case of the year 2006. Therefore, the trial court is directed to dispose of the case as early as possible, but not later than six months from the date of receipt of a copy of this judgment. The appellant/complainant and the second respondent/accused shall appear before the trial court on receipt of notice from the trial court. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal.No.51/2009 Page numbers