IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 CRL.A.No. 1460 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.535/2007 Dated 02/08/2007 CC.158/2007 OF THE J.F.C.M.-III, KOTTARAKKARA .................... APPELLANT: COMPLAINANT: ----------------------- M/S. SREE GOKULAM CHITS & FINANCE CO. PVT LTD. KOTTARAKKARA, REP. BY ITS AUTHORIZED REPRESENTATIVE MR.S.PRADEEP,LEGAL CLERK RESIDING AT MOOLATHARA THOPIL, KANTRAMKANI, MANTRO ISLAND P.O., KOLLAM. BY ADV. SRI.K.SANIL KUMAR RESPONDENTS: ACCUSED/STATE: --------------------------- 1. PRABHAKARAN PILLAI, S/O. BALAKRISHNA PILLAI, THOTTATHIL VEEDU, MYLOM, KOTTARAKKARA, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1460 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 JUDGMENT The appellant, a Private Ltd. Company, is the complainant in a prosecution under Section 138 of the N.I. Act. The cheque is for an amount of Rs.1,10,204/- When the matter came up for hearing on 4.6.2007, the complainant was absent and an application was filed to excuse the absence of the complainant. The learned Magistrate, without specifying any reasons, proceeded to dismiss the complaint and acquitted the accused by the impugned order holding that the complainant is not present either in person or by pleader. The learned counsel for the appellant submits that the order was passed as a result of an obvious error committed by the learned Magistrate. On 4.6.2007 M.P. 1240 of 2007 had been filed by the counsel for the complainant to excuse the absence of the complainant. That was dismissed with a two sentence order, which reads as follows: “No valid reason. Hence dismissed.” Crl.A.No. 1460 of 2007 2 2. The learned counsel for the appellant submits that the appellant was prosecuting the case with due diligence all along and the dismissal for the absence on 4.6.2007 is not justified. The complaint was filed and cognizance was taken only in 2007. In these circumstances it is evident that there was no wilful laches or contumacious attempt on the part of the appellant to protract the proceedings. 3. The respondent has been served. There is no appearance. 4. I am satisfied that a lenient view can be taken and the appellant/complainant can be given a further opportunity to prosecute the complaint. 5. In the result: a) This appeal is allowed. b) The impugned order is set aside. c) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law. Crl.A.No. 1460 of 2007 3 6. The appellant shall appear before the learned Magistrate on 17.10.2008 to continue the proceedings with a copy of this judgment. (R. BASANT) Judge tm