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. 92 of 2009() ---------------------- ( CC.NO.1569/04 OF JFCM I, ERNAKULAM) APPELLANT(S)/COMPLAINANT ------------------------------------ M/S.KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI, PALARIVATTOM UNIT, (AFFILIATED TO KERALA VYAPARI VYAVASAYI EKOPANA SAMITHI (REG.NO.262/81), DOOR NO.35/1C (17), PALARIVATTOM, KOCHI - 682 025, REPRESENTED BY ITS GENERAL SECRETARY. BY ADV. SRI.MATHEW SKARIA RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. P.ITTY PAUL, AGED ABOUT 60 YEARS, S/O.P.V.PAULOSE, SANGEETHA COPY CENTRE, PALARIVATTOM, KOCHI - 682 025. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.MILLU DANDAPANI 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.92 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of March, 2010 JUDGMENT Challenge in this appeal by the complainant is to the order of Judicial First Class Magistrate I, Ernakulam dated October 29, 2008 dismissing the complaint for the absence of the complainant and acquitting 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. When the case was posted for the evidence of the complainant on October 29, 2008, he was absent. There was also no representation on his behalf. Therefore, the trial court dismissed the complaint and acquitted the accused. The complainant has now come up in appeal challenging the said order of the trial court. 3. Heard the counsel for the appellant/complainant and the counsel for the first respondent/accused. Crl.Appeal.No.92/09 Page numbers 4. Counsel for the appellant/complainant submitted that the person representing the complainant mistakenly went to Judicial Magistrate of First Class II, Ernakulam and by the time when he came back, the case was called and the complaint was dismissed and that there is no wilful negligence on the part of the complainant. The above submission made by the counsel for the appellant is seriously opposed by the counsel for the first respondent/accused. On gong through the records and on hearing the submissions made by the counsel for appellant and first respondent, I feel that the complainant should be given a chance to prove his case before the trial court, as according to the complainant, the cheque was issued by the accused for the amount due under a business transaction. Therefore, I feel that the appeal can be allowed on payment of cost of Rs. 1000/- to the 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 is directed to take the complaint on file and proceed in accordance with law. The trial court shall dispose of the case as early as possible, but Crl.Appeal.No.92/09 Page numbers not later than six months from the date of receipt of a copy of this judgment. Parties shall appear before the trial court on April 20, 2010. P.Q.BARKATH ALI JUDGE sv. Crl.Appeal.No.92/09 Page numbers