IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 CRL.A.No. 870 of 2007() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.713/2006 Dated 21/12/2006 STC.1547/2005 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT: COMPLAINANT ---------------------- KURUVILA JOHN, AKKUVILA HOUSE, KALATHYPADY, KOTTAYAM. BY ADV. SRI.B.PREMOD RESPONDENTS: ACCUSED -------------------- 1. SAHARUDIN, S/O.THAJUDEEN, SAHRUBAL MANZIL, THAKKEMYNAGAPPALLY MURI, KARUNAGAPPALLY P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB ADV. SRI.BIMAL K.NATH FOR R1 SRI.S.JAMAL FOR R1 SRI.E.M.SUNIL KUMAR FOR R1 SRI.SREEVALSAN.V FOR R1 SMT.SMITHA DIVAKARAN FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.870 of 2007 ---------------------------------------- Dated this the 24th day of July 2008 J U D G M E N T The appellant is a complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The complaint was received on transfer from the court of the learned Chief Judicial Magistrate, Kollam by the learned Judicial First Class Magistrate Court-II, Mobile, Kottayam on 12/8/2005. Thereafter the case underwent adjournments from time to time and on 19/9/2006 when the matter came up for hearing the complainant was absent. There was no representation for the complainant. The order sheet maintained by the learned Magistrate does not show whether the accused was present or not on that date. The learned Magistrate thereupon proceeded to pass the impugned order dismissing the complaint for default under Section 256 Cr.P.C. 2. The learned counsel for the petitioner submits that the absence of the petitioner was not wilful or deliberate. The petitioner has been seriously prosecuting the complaint all along. His absence on 19/9/2006 and the posting before that Crl.A.No.870/07 2 date on 12/9/2006 was not wilful or deliberate. On 09/08/2006 the case was adjourned by notification. The petitioner had understood the date of next posting to be 22/9/2006. On 22/9/2006 he came to know that the case was called on 12/9/2006 and 19/9/2006 and had been dismissed. 3. I am satisfied that notwithstanding the opposition of the learned counsel for the respondent/accused a lenient view is liable to be taken in the facts and circumstances of this case. I do note that the appellant/complainant had diligently prosecuted this case all alone till 09/08/2006. 4. In the result, a) This appeal is allowed. b) The impugned order is set aside. c) Parties are directed to appear before the learned Magistrate - complainant with a copy of this judgment on 25/8/2008. The learned Magistrate shall thereupon proceed to dispose of the case as expeditiously as possible, at any rate, within a period of three months from that date. (R.BASANT, JUDGE) jsr Crl.A.No.870/07 3 Crl.A.No.870/07 4 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006