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. 1787 of 2003() ------------------------ CC.146/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, ATTINGAL .................... APPELLANT(S): COMPLAINANT. -------------------------- V.VIJAYAN, S/O.VELU, VALIYAVILA VEEDU, KURAKADA, VEILOOR VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM DIST. BY ADV. SRI.M.R.RAJESH RESPONDENT(S): STATE AND ACCUSED. --------------------------------- 1. STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. KARKHA BAHADUR KHALE (WRONGLY SHOWN IN THE IMPUNGED ORDER AS BIN BAHADUR KHALE), SECURITY GUARD, KERALA STATE FILM DEVELOPMENT CORPORATION, CHITHRANJALI STUDIO, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY 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. 1787 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26th day of March, 2010 JUDGMENT The challenge in this appeal by the complainant is to the order of the Judicial First Class Magistrate Court-II, Attingal dated August 29, 2003, 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 against the second respondent/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. When the case was posted for evidence of the complainant on August 29, 2010, he was absent. The application filed by his Crl.A. 1787/2003 2 counsel on medical ground was rejected by the lower court. The lower court then dismissed the complaint and acquitted the accused. The complainant has come up in appeal, challenging the said order of the lower court. 3. Heard the learned counsel for the appellant/complainant. The 1st respondent remained absent, though notice was served on him. 4. The counsel for the appellant submits that on 29-8- 2003 the appellant was laid up due to conjunctivitis and that therefore he was unable to appear before the trial court on that day. 5. It is seen from the order of the lower court that when the case was posted on August 21, 2003, the complainant was absent and that the lower court directed the complainant be present on August 29, 2003 and the appellant/complainant was absent on that date. Therefore, in my view, there is some laches on the part of the complainant. Even then I feel that an opportunity should be given to the complainant to prove his case. Therefore, in my Crl.A. 1787/2003 3 view, appeal can be allowed on payment of costs of Rs.1,000/-. The costs shall be paid within three weeks from today to the Kerala Mediation Centre, attached to the High Court. On receipt of the memo, the appeal shall be posted on April, 28, 2010 in the Chambers at 1.25 P.M. P.Q.BARKATH ALI, JUDGE. mn.