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. 1262 of 2009() ------------------------ ST.898/2007 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... APPELLANT(S): COMPLAINANT ------------------------------------ K.M.JOSEPH, PUTHENPARAMBIL HOUSE, MATHEEN VAYALIL, THIRUMULLA VARAM POST, KOLLAM. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SREEJITH V.S., COMMANDANT OFFICE CLERK, KAP/5, BATTALION ADOOR, PATHANAMTHITTA P.C. 4262. ADV. SRI.T.GOPALAKRISHNAN FOR R2 SRI.K.P.JABBAR FOR R2 P.P.SRI.C.M.KAMAPPU 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.A. No. 1262 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26th day of March, 2010 JUDGMENT The challenge in this appeal by the complainant is to the order of the Chief Judicial Magistrate, Kollam dated April 23, 2009 in S.T. No. 898 of 2007, dismissing the complaint for the absence of the complainant and acquitting the accused under section 256(1) Cr.P.C. 2. The 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 learned Magistrate recorded the sworn statement of the complainant and took cognizance of the offence. The accused on appearance before the trial court pleaded not guilty to the charge under section 138 of the Negotiable Instruments Act. Thereafter, the case was posted for appearance of the accused several Crl.A. No. 1262/2009 2 times. When the case was posted for the evidence of the complainant on April 23,2009, he was absent. Therefore, the lower court dismissed the complaint. The complainant has come up in appeal challenging the said order of the lower court. 3. Heard the learned counsel for the appellant/complainant and learned counsel for the 2nd respondent/accused. Learned counsel for the appellant submitted that the complainant was absent on April 23, 2009 as his Clerk wrongly noted the posting date. It is seen from the copy of the proceeding sheet produced by the appellant that almost on all previous occasions the complainant was present. 4. Therefore, I feel that complainant should be given an opportunity to prove his case before the lower court. But there is some laches on the part of the appellant in not appearing before lower court, for which he has to pay costs. 5. In the result, the appeal will be allowed on payment of cost of Rs.2,000/- by the appellant. Out of the cost Crl.A. No. 1262/2009 3 ordered, the appellant shall pay Rs.1,000/- to learned counsel for the 2nd respondent and Rs.1,000/- to the Kerala Mediation Centre attached to the High Court of Kerala within three weeks from this date. Post the appeal for further orders on April 30, 2010 in the Chambers at 1.25 p.m. on receipt of the memo. P.Q.BARKATH ALI, JUDGE. mn.