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
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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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