IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 CRL.A.No. 252 of 2006() ----------------------- AGAINST THE ORDER IN CRLP.41/2006 Dated 19/01/2006 CC.334/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ERATTUPETTA .................... APPELLANT : COMPLAINANT ------------------------- JOY K.GEORGE, KUTTICKATTU HOUSE, YENDER P.O., KOOTTICKAL. BY ADV. SRI.SERGI JOSEPH THOMAS RESPONDENT : ACCUSED ---------------------- SMT. GRACY PHILIP, MATTAMUNDAYIL HOUSE, KEERIKARA P.O., VANDIPERIYAR CORRECTED AS SMT. GRACY JOSE AS PER ORDER DT. 30.10.2006 IN CRL.M.A.9976/06. ADV. SRI.T.A.UNNIKRISHNAN FOR R1 SRI.P.P.BIJU FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- CRL. APPEAL NO.252 OF 2006 -------------------------------------- Dated: JUNE 17, 2009 JUDGMENT This is an appeal filed by the complainant in C.C.No.334 of 2004 of Judicial First Class Magistrate's Court, Erattupetta, challenging the judgment of the learned Magistrate dated October 24, 2005 dismissing the complaint on account of the absence of the complainant and acquitting the accused under sec.256(1) Cr.P.C. Special leave was granted in Crl.L.P.No.41/2006 dated January 19, 2006. 2. The appellant filed a private complaint before the trial court alleging that the accused, in discharge of a legally enforceable liability, issued a cheque dated May 6, 2004 drawn on the Corporation Bank, Kottayam branch for an amount of Rs.3 lakhs which, when presented for collection in the Pinnakkanadu branch of the Meenachil East Urban Co-operative Bank Ltd., was returned dishonoured for want of sufficiency of funds in the account of the accused in the bank and that in spite of statutory CRL. APPEAL NO.252 OF 2006 2 notice the 1st respondent/accused did not repay the amount nor sent any reply and thereby the accused committed an offence punishable under sec.138 of the Negotiable Instruments Act. 3. After recording the sworn statement of the complainant, the magistrate took cognizance of the offence and the case was posted on several days for the evidence of the complainant and lastly on September 13, 2005. On all those occasions the complainant was absent. On October 24, 2005 also when the complainant was absent, his application for excusing his absence was rejected and the complaint was dismissed by the trial court and the accused was acquitted under sec.256(1) Cr.P.C. The complainant challenges the said order in this appeal. 4. Sri Sergi Joseph Thomas, learned counsel appearing for the appellant, argued that the complainant is a lawyer practicing in Kanjirappally court and that he was laid up on the relevant date and that was why he remained absent. Sri T.A. Unnikrishnan, learned counsel for the 1st respondent/accused would say that on several occasions for more than six months the complainant was continuously absent and that the trial court is CRL. APPEAL NO.252 OF 2006 3 perfectly justified in dismissing the complaint. 5. Having heard the submissions made by the counsel for both parties and taking into account the fact that the complainant is an Advocate practicing in the Kanjirappally court and that the amount involved in this case is Rs.3 lakhs, I feel that an opportunity should be given to the complainant to prove his case. But there is some latches on the part of the appellant in not appearing before the lower court several times for which he should be penalised with costs. In the circumstances of the case I feel that a cost of Rs.1000/- would be reasonable. 6. In the result, the appeal will be allowed on payment of cost of Rs.1000/- by the appellant to the counsel for the respondent. 7. Cost paid and the appeal is allowed. The order of the trial court dated October 24, 2005 dismissing the complaint and acquitting the accused is set aside. The matter is remanded to the trial court for fresh disposal according to law after affording an opportunity to both sides to adduce evidence. The appellant and the respondent shall appear before the lower court on CRL. APPEAL NO.252 OF 2006 4 1.7.2009. Thereafter the learned Magistrate shall fix a date for the evidence of the complainant. If the complainant remains absent on that day, the lower court is at liberty to dismiss the complaint. The lower court shall dispose of the matter as early as possible, but not later than six months from the date of receipt of a copy of this judgment. P.Q. BARKATH ALI, JUDGE mt/-