IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 CRL.A.No. 1222 of 2007() ------------------------ C.C.NO.172/05 OF THE JFMC-V (SPECIAL COURT FOR MARKLIST CASES), THIRUVANANTHAPURAM. CRL.L.P.NO.339/07 OF THE HIGH COURT OF KERALA. APPELLANT(S): COMPLAINANT ------------------------- M.N.RANJITH, S/O.NEELAKANTAN, VASANTHAM, KAWDIAR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): STATE AND ACCUSED -------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. K.SHAJI, SURYA INVESTMENTS, VAIKOM - 686141, KOTTAYAM DISTRICT. BY P.P. SRI. S.U. NAZAR. ADV. SRI.DILIP MOHAN FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.A. No. 1222 of 2007 ------------------------------------------------- Dated this the 26th day of September, 2008 JUDGMENT The appellant is the complainant in a prosecution under Sec.138 of the Negotiable Instruments Act. The complaint was dismissed on 23/5/07 invoking the powers under Sec.256 Cr.P.C. on the ground that on a date when the case was posted for defence evidence, the complainant and his counsel were absent. 2. The learned counsel for the appellant/complainant submits that the invocation of the powers under Sec.256 Cr.P.C. is most unjustified. The case was posted for defence evidence. The personal presence of the complainant was not necessary. At worst, the court could have examined the defence witnesses and noted that there was no cross- examination of the defence witnesses. On a date when the Crl.A. No. 1222 of 2007 -: 2 :- case was posted for defence evidence, the personal presence of the complainant was totally unnecessary. In these circumstances, at any rate, the invocation of the jurisdiction under Sec.256 Cr.P.C. was unjustified, argues the learned counsel for the appellant. 3. The learned counsel for the respondent/accused, on the contrary, submits that the accused and his witnesses were present on the earlier date. They were not examined as the complainant had sought adjournment. The adjournment was granted on condition of payment of cost. No such cost was paid. It was, in these circumstances, that the court below invoked the powers under Sec.256 Cr.P.C. and dismissed the complaint. 4. In the facts and circumstances of this case, I am satisfied that even assuming that the complainant was guilty of not making the payment of cost and of not being present on a date when the case was posted for defence evidence, the learned Magistrate could have proceeded to record the defence witnesses and could have proceeded further to dispose of the case on merits. In any view of the matter, the invocation of the jurisdiction under Sec.256 Cr.P.C. to dismiss the complaint was not strictly necessary. The accused has been put to inconvenience. I am satisfied that subject to appropriate Crl.A. No. 1222 of 2007 -: 3 :- conditions, the complainant can be granted an opportunity to further prosecute his complaint. 5. In the result: (a) This appeal is allowed subject to condition. (b) The impugned order shall stand set aside and the learned Magistrate shall proceed to dispose of the complaint afresh in accordance with law on the following terms and conditions: (i) The complainant shall pay to the accused an amount of Rs.1,000/- as costs on or before 10/11/08. (ii) The parties shall appear before the learned Magistrate on 10/11/08. (iii) If the cost is not paid, the learned Magistrate shall record that fact on 10/11/08 and thereupon the impugned order shall revive. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.A. No. 1222 of 2007 -: 4 :-