IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 59 of 2009()
1. M.A.ABDUL RAHIM, AGED 47 YEARS,
... Petitioner
Vs
1. K.YESHODA, AGED 43 YEARS,RESIDING AT
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.T.MADHU
For Respondent :SRI.SUNIL NAIR PALAKKAT
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/03/2010
O R D E R
P.Q.BARKATH ALI, J.
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Crl.Appeal No.59 OF 2009
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Dated this the 26th day of March, 2010
JUDGMENT
Challenge in this appeal is to the order of the Chief Judicial
Magistrate of Kasargod in C.C.No.435/2008 dated October 18, 2008
dismissing the complaint for his absence and acquitting the accused under
Section 256(1) of Cr.P.C.
2. The facts in brief are these :
The appellant/complainant filed a private complaint before the lower
court against the accused alleging the offence under Section 138 of
Negotiable Instruments Act. When the case was posted for the evidence of
complainant on October 18, 2008, he remained absent. Though he filed a
petition to excuse his absence, it was rejected and the lower court dismissed
the complaint. The complainant has challenged the said order in this appeal.
3. Heard the counsel for the appellant/complainant and the
counsel for the respondent/accused.
4. Counsel for the appellant/complainant submitted that the
complainant was laid up due to Viral Fever on the date when it was posted
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for evidence and that because of that he was unable to attend the court. and
that though he filed a petition to excuse his absence, it was dismissed by the
trial court.
On going through the records and having heard the submissions made
by the counsel for appellant and that of the first respondent, I feel that an
opportunity should be given to the complainant to prove his case. But there
is some latches on the part of the appellant/complainant which has to be
compensated with cost. Therefore, I feel that the appeal can be allowed on
payment of cost of Rs. 1000/- to 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 shall take the
complaint on file and dispose of the case in accordance with law . Both
parties shall appear before the court on 20/04/2010. The lower court shall
dispose of the case as early as possible, but not later than six months from
the date of receipt of a copy of this judgment.
P.Q.BARKATH ALI
JUDGE
sv.
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