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. 15 of 2009() ---------------------- CC.686/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... APPELLANT(S): COMPLAINANT -------------- M/S. SHREYAS, POST OFFICE LINK ROAD, BROADWAY P.O., KOCHI, REP. BY ITS MANAGING PARTNER P.VALSARAJ, POST OFFICE LINK ROAD BROADWAY, P.O. KOCHI -31 BY ADV. SRI.R.HARIKRISHNAN SRI.SUDHEENDRAN. K.Y. SMT.R.REMA SMT.A.SINDHULAKSHMY RESPONDENT(S): ACCUSED & STATE --------------- 1. MR.BINU CHACKO, B.B.TEX AND SHOPPING COMPLEX KULAYATTIKARA, ARAYANKAVU P.O. ERNAKULAM 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R1 SRI.M.MANOJKUMAR (CHELAKKADAN) 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.15 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the complainant is to the judgment of Judicial First Class Magistrate, Kochi dated December 10, 2003 dismissing the complaint for the absence of the complainant and acquitted the accused under Section 256(1) Cr.P.C. 2. The facts in brief are these : The complainant filed a private complaint before the trial court alleging offence under Section 138 of Negotiable Instruments Act. On 21/10/2003, the complainant filed proof affidavit and when the case was posted on 10/12/2003 for cross examination, he remained absent and there was no representation. Therefore, the trial court dismissed the complaint and acquitted the accused. 3. The counsel for the appellant argued that the counsel appearing for the complainant before the trial court mistook the date as 10/01/2003 and that therefore the complainant was unable to appear before lower court on 10/12/2003. The counsel for respondent/accused Crl.Appeal No.15/2009 2 submitted that the reason stated by the complainant for his non- appearing before lower court is unconvincing and that therefore the appeal has to be dismissed. On going through the records and having heard the submissions made by the counsel for the appellant and that of the first respondent, I feel that an opportunity should be given to the complainant to prove his case before the trial court and the appeal can be allowed. But as there is latches on the part of the complainant, he has to pay a cost of Rs.1,000/- to the first respondent/accused. Therefore, the appeal will be allowed on payment of cost of Rs. 1000/- to the first respondent/accused within one month from this date. On receipt of the memo the appeal shall be posted on 26/04/2010 in my Chambers for further orders. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal No.15/2009 3 Memo produced. Appeal is allowed by way of remand. The impugned judgment of the Judicial First Class Magistrate Court -II, Kochi, No.686/01 dismissing the complaint and acquitting the accused is set aside. The Magistrate is directed to take the complaint on file and proceed in accordance with law after giving an opportunity of both parties to adduce evidence. Both parties shall appear before the Magistrate on 25.5.2010. 27th April, 2010 P.Q.BARKATH ALI, JUDGE dmb Crl.Appeal No.15/2009 4