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. 59 of 2009() ---------------------- CC.435/2008 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... APPELLANT/ COMPLAINANT ------------------------------------- M.A.ABDUL RAHIM, AGED 47 YEARS, S/O.ANTONY, NABEESA QUARTERS, MUTTATHODY VILLAGE, MUTTATHODY.P.O, 'VIDHYA NAGAR, KASARAGOD DIST. BY ADV. SRI.T.MADHU RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. K.YESHODA, AGED 43 YEARS,RESIDING AT 'BINDU NILAYAM NEAR DHARMADAIVAM THARAVAD, BEACH ROAD, KASARAGOD. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PRSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SUNIL NAIR PALAKKAT FOR R1 SMT.R.LEELA FOR R1 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.59 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal is to the order of the Chief Judicial Magistrate of Kasargod in C.C.No.435/2008 dated October 18, 2008 dismissing the complaint for his absence and acquitting the accused under Section 256(1) of Cr.P.C. 2. The facts in brief are these : The appellant/complainant filed a private complaint before the lower court against the accused alleging the offence under Section 138 of Negotiable Instruments Act. When the case was posted for the evidence of complainant on October 18, 2008, he remained absent. Though he filed a petition to excuse his absence, it was rejected and the lower court dismissed the complaint. The complainant has challenged the said order in this appeal. 3. Heard the counsel for the appellant/complainant and the counsel for the respondent/accused. 4. Counsel for the appellant/complainant submitted that the complainant was laid up due to Viral Fever on the date when it was posted Crl.Appeal No.59/09 2 for evidence and that because of that he was unable to attend the court. and that though he filed a petition to excuse his absence, it was dismissed by the trial court. On going through the records and having heard the submissions made by the counsel for appellant and that of the first respondent, 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/complainant which has to be compensated with cost. Therefore, I feel that the appeal can be allowed on payment of cost of Rs. 1000/- to first respondent/accused. Cost paid. The appeal is allowed. The impugned order of the trial court dismissing the complaint is set aside. The trial court shall take the complaint on file and dispose of the case in accordance with law . Both parties shall appear before the court on 20/04/2010. The lower court 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. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal No.59/09 2