M/S.Kerala Vyapari Vyavasayi … vs P.Itty Paul on 26 March, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 92 of 2009()


1. M/S.KERALA VYAPARI VYAVASAYI EKOPANA
                      ...  Petitioner

                        Vs



1. P.ITTY PAUL, AGED ABOUT 60 YEARS,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY PUBLIC

                For Petitioner  :SRI.MATHEW SKARIA

                For Respondent  :SRI.MILLU DANDAPANI

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.92 OF 2009
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                    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.

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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.

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