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. 1187 of 2009() ------------------------ ST.498/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... APPELLANT(S): PETITIONER/COMPLAINANT ------------------------------------ SYRANDRI,D/O.CHINNU,KENI, NETAJI BOSE ROAD,CHARACHIRA, KOWDIAR P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.J.HARIKUMAR RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. VANAJAKSHI, D/O.MADHAVI, NURSING ASSISTANT,FORT HOSPITAL, NEAR PANCHAJANYAM KALYANA MANDAPAM, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY P.P. SRI. C.M. KAMAPPU FOR R2 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. 1187 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the complainant is to the order of the Judicial Magistrate of the First Class-III, Thiruvananthapuram in S.T.No.498 of 2008 dated May 23, 2009, dismissing the complaint for the absence of the complainant and acquitting the accused under section 256 (1) of the Code of Criminal Procedure. 2. Appellant/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 lower court recorded the sworn statement of the complainant and took cognizance of the complaint. The accused, on appearance before the lower court, pleaded not guilty to a charge under section 138 of the Negotiable Instruments Act. Thereafter, when the case was posted for evidence of the complainant on February 25, 2009, she was absent. Crl.A.1187/09 2 Therefore, the lower court dismissed the complaint and acquitted the accused under section 256(1) of the Code of Criminal Procedure. The complainant has now come up in appeal, challenging the said order of the lower court. 3. Heard learned counsel appearing for the appellant/complainant and learned Public Prosecutor appearing for the second respondent. 4. The learned counsel for the appellant/complainant submits that the complainant was present on the previous posting date i.e., February 25, 2008, that on May 23, 2008 when the case was posted for evidence, she was laid up and that though counsel for the complainant filed an application for excuse her absence, the lower court rejected the same and dismissed the complaint and acquitted the accused. 5. The learned counsel for the appellant/complainant has produced the certified copy of the order sheet of the case before the lower court. It shows that on February 25, 2009 the complainant was not specifically directed to be present before the court. Further on the previous posting Crl.A.1187/09 3 date, the appellant was present. Therefore, in my view the lower court is not justified in dismissing the complaint. I also feel that an opportunity should be given to the complainant to prove her case. 6. Therefore, the appeal is allowed. The impugned order of the lower court dated May 23, 2009 is set aside. The lower court is directed to take the complaint on file and dispose of the same as early as possible, at any rate within six months from the date of receipt of copy of this judgment. 7. The appellant/complainant shall appear before the lower court on April 20, 2010. As the first respondent/accused has not entered appearance in this case, the lower court shall issue notice to her. P.Q. BARKATH ALI, JUDGE. mn