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. 57 of 2009() ---------------------- ( S.T.NO.4513/2004 OF JFCM II, PARAVUR) APPELLANT(S) /COMPLAINANT ------------------------------------ VASU, S/O.VELAN, 'USHUS', NELSON MUNDELA ROAD, PALLURUTHY, VELI, KOCHI, ERNAKULAM DT. BY ADV. SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT(S): ACCUSED ---------------------- 1. NAGANDRAN, S/O.KUTTY, VISALA BHAVAN, PALLURUTHY, RAMESWARAM VILLAGE, KOCHI. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU 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. 57 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 II, Paravur dated September 2, 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 complainant before the trial court against the accused alleging the offence punishable under Section 138 of Negotiable Instruments Act. The complainant filed proof affidavit on 09/06/2008. Thereafter though the case was posted on several times, complainant remained absent and on September 2, 2008 the trial court dismissed the complaint for the absence of the complaint. The complainant has now come up in appeal challenging the said order of the trial court. 3. Heard the counsel for the appellant/complainant. First respondent/accused remained absent, though notice was served. Crl.Appeal.No.57/09 2 4. The counsel for the appellant/complainant pointed out that the complainant is aged more than 76 and that as he was laid up, he was unable to appear before the trial court. 5. As the complainant is an aged person, I feel that an opportunity should be given to him to prove his case before the trial court. But for several times, he remained absent before the trial court for which he has to pay cost. In the result, the appeal is allowed on payment of cost of Rs. 2,000/- to the Kerala Mediation Centre attached to this court within three weeks from today. On production of memo, the appeal shall be posted for further orders. P.Q.BARKATH ALI JUDGE Cost paid. The appeal is allowed. The matter is remanded to the trial court for fresh disposal in accordance with law. The revision petitioner/complainant shall appear before the Trial Court on or before 30/09/2010. As the accused has not entered appearance in this court, the Trial Court shall issue notice for his appearance. Both parties are Crl.Appeal.No.57/09 3 entitled to adduce evidence to prove their case. The learned Magistrate shall 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. 18-08-2010 P.Q.BARKATH ALI JUDGE sv. Crl.Appeal.No.57/09 4