Judgment · High Court · 2007

J.M. JAMES, J.-------------------------------Criminal Appeal No. 809 of 2005 -------------------------------Dated this the 10th April, 2007.J U D G M E N TThe complainant in C.C.No.43/2002, on the file of theJudicial First Class Magistrate Court-V, (Special Court for Mark ListCases), Thiruvananthapuram, is the appellant. He preferred acomplaint under Section 138 of the Negotiable Instruments Act, against the first respondent, the accused. The matter was posted forevidence on 18.6.2003. The complainant was absent. Therefore, thecomplaint dismissed, and the accused acquitted. The same is underchallenge through this appeal by the complainant, after obtaining leaveof this Court. 2. The learned counsel appearing for the appellantsubmits that when the case was posted on 8.4.2003, the complainantwas present, but the accused was absent. A non bailable warrant wasissued against the accused, and the case was adjourned to 22.4.2003,and on that date, the same was further adjourned to 22.5.2003,4.6.2003, and then to 18.6.2003. Due to the ill-health of thecomplainant, appellant, he had preferred an application for condoninghis absence on 18.6.2003. But for want of medical document along Crl.A.No.809/20052with the application, the same was rejected, and the complaint wasdismissed holding that the complaint was posted for evidence, as thelast chance. 3. After hearing both sides, and considering the factson record, I find that it is a fit case, where an opportunity be given toboth sides to raise their respective contentions, by adducing evidence. Hence, I set aside the impugned order, dated 18.6.2003, and restoreC.C.No.43/2002 to the file of the Judicial First Class Magistrate Court-V, (Special Court for Mark List Cases), Thiruvananthapuram. 4. The parties shall appear before the court below on24.5.2007. The learned Magistrate shall dispose of the matter, givingpriority, and in any case, within four months from the date ofappearance of the parties. The Criminal Appeal is allowed as above. J.M. JAMES,JUDGEnj.