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. 1741 of 2003(A) ------------------------- ST.146/1998 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... APPELLANT(S): COMPLAINANT: -------------- A.A.ABDULLA, S/O. HYDRU, AVULAN HOUSE, MANJERI N.S.S. COLLEGE P.O., MALAPPURAM. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): ACCUSED & STATE: --------------------- 1. KARUVADY SARADA, D/O. RAMAN, CHERUVAIKKARA P.O., EASWARA MANGALAM, PONNANI TALUK, MALAPPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.P.S.SREEDHARAN PILLAI FOR R1 SRI.K.B.SAJEESH FOR R1 SRI.P.GOPINATH FOR R1 SRI.C.S.SUNIL FOR R1 SRI.P.R.SREEJITH FOR R1 P.P. SRI. C.M. KAMAPPU FOR R2 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.A. No. 1741 of 2003 A =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the complainant is to the order of the Chief Judicial Magistrate, Manjeri dated August 21, 2003 in S.T.No.146 of 1998, dismissing the complaint for the absence of the complainant and acquitting the accused under section 256(1) of the Code of Criminal Procedure. 2. Appellant/complainant filed a private complaint before the lower court against the accused, alleging an offence punishable under section 138 of the Negotiable Instruments Act. On receipt of the complaint, the lower court recorded the sworn statement of the complainant and took cognizance of the complaint. The accused, on appearance before the lower court, pleaded not guilty to a charge under section 138 of the Negotiable Instruments Act. When the case was posted for the appearance of the complainant on August 21, 2003, he remained absent. Crl.A. 1741/2003 2 Therefore, the lower court dismissed the complaint. The complainant has now come up in appeal, challenging the said order of the lower court. 3. Heard learned counsel appearing for the appellant/complainant and learned counsel appearing for the first respondent/accused. 4. Learned counsel for the appellant/complainant submits that as the appellant/complainant was laid up with vomiting and diarrhea, he could not appear before the lower court on August 21, 2003. Learned counsel for the first respondent/accused opposed the appeal, stating that though several opportunities were given to the appellant, he did not appear before the lower court. 5. It is seen from the proceedings sheet of the lower court that on several occasions, when the case was posted, the appellant/complainant was absent. On March 23, 2001 the lower court dismissed the complaint for the absence of the complainant and was restored to file as per judgment dated July 30, 2002 in Crl.A. No.454 of 2001 of this Court. Crl.A. 1741/2003 3 Even thereafter, the complainant was on several occasions absent. Therefore, I am of the view that the lower court is perfectly justified in dismissing the complaint in the absence of the complainant. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed. P.Q. BARKATH ALI, JUDGE. mn