IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1787 of 2003()
1. V.VIJAYAN, S/O.VELU, VALIYAVILA VEEDU,
... Petitioner
Vs
1. STATE OF KERALA REP. THE
... Respondent
2. KARKHA BAHADUR KHALE(WRONGLY SHOWN IN
For Petitioner :SRI.M.R.RAJESH
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.A.No. 1787 of 2003
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Dated this the 26th day of March, 2010
JUDGMENT
The challenge in this appeal by the complainant is to
the order of the Judicial First Class Magistrate Court-II,
Attingal dated August 29, 2003, dismissing the complaint
for the absence of the complainant and acquitting the
accused under section 256(1) Cr.P.C.
2. The complainant filed a private complaint against
the second respondent/accused, alleging an offence
punishable under section 138 of the Negotiable Instruments
Act. On receipt of the complaint, the learned Magistrate
recorded the sworn statement of the complainant and took
cognizance of the offence. The accused on appearance
before the trial court pleaded not guilty to the charge under
section 138 of the Negotiable Instruments Act. When the
case was posted for evidence of the complainant on August
29, 2010, he was absent. The application filed by his
Crl.A. 1787/2003 2
counsel on medical ground was rejected by the lower court.
The lower court then dismissed the complaint and acquitted
the accused. The complainant has come up in appeal,
challenging the said order of the lower court.
3. Heard the learned counsel for the
appellant/complainant. The 1st respondent remained absent,
though notice was served on him.
4. The counsel for the appellant submits that on 29-8-
2003 the appellant was laid up due to conjunctivitis and
that therefore he was unable to appear before the trial
court on that day.
5. It is seen from the order of the lower court that
when the case was posted on August 21, 2003, the
complainant was absent and that the lower court directed
the complainant be present on August 29, 2003 and the
appellant/complainant was absent on that date. Therefore,
in my view, there is some laches on the part of the
complainant. Even then I feel that an opportunity should be
given to the complainant to prove his case. Therefore, in my
Crl.A. 1787/2003 3
view, appeal can be allowed on payment of costs of
Rs.1,000/-. The costs shall be paid within three weeks from
today to the Kerala Mediation Centre, attached to the High
Court.
On receipt of the memo, the appeal shall be posted on
April, 28, 2010 in the Chambers at 1.25 P.M.
P.Q.BARKATH ALI,
JUDGE.
mn.