IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 51 of 2009()
1. OUSEPH ABRAHAM, MAMMOTTIL HOUSE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. GIRISHKUMAR V.K. @ SATHYAN,
For Petitioner :SRI.VPK.PANICKER
For Respondent : No Appearance
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.51 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, Kottayam dated August 8, 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 complaint filed a private complaint before the trial court
against the second respondent/accused alleging the offence punishable
under Section 138 of Negotiable Instruments Act. When the case was
posted for filing proof affidavit on August 20, 2008, the complainant
was absent. 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. The counsel for the appellant submitted that on August 20,
2008 the complainant was laid up and that therefore he was unable to
Crl.Appeal.No.51/2009 Page numbers
appear before the trial court and that the petition to excuse his absence
was dismissed by the trial court.
4. In this appeal there was no representation for the first
respondent/accused. Learned counsel for the complainant produced a
certified copy of the order sheet of the case before the trial court. It is
seen that when the case was posted on 10/7/2007, the accused was
absent. It was posted to 30/07/2007 for filing the affidavit. On
30/07/2007 both parties were absent and the case was adjourned to
28/08/2008 for filing the proof affidavit . Though the counsel for the
complainant applied to excuse his absence, it was dismissed by the trial
court.
5. On going through the records and having heard the
submissions made by the counsel for the appellant, I feel that the
complainant should be given an opportunity to prove his case before
the trial court and that therefore the appeal can be allowed.
In the result, 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
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law. This is a case of the year 2006. Therefore, the trial court is
directed to 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. The
appellant/complainant and the second respondent/accused shall appear
before the trial court on receipt of notice from the trial court.
P.Q.BARKATH ALI
JUDGE
sv.
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