IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 CRL.A.No. 756 of 2002() ----------------------- CC.244/2001 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... APPELLANT(S): COMPLAINANT ------------------------- M/S.SARATH ENTERPRISES, DOOR NO.716/1, ARPOOKARA, KOTTAYAM, A PROPRIETORY CONCERN, REPRESENTED BY HOLDER OF POWER OF ATTORNEY A.SASIKUMAR. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL RESPONDENT(S): ACCUSED ---------------------- K.G.SHAJI, S/O. GANGADHARAN, KOONLYARA, VEMBALLOOR, TRICHUR. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.756 of 2002 ---------------------------------------- Dated this the 6th day of November 2008 J U D G M E N T The appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. A complaint was filed on 07/04/2001. It underwent nine adjournments. Cognizance was taken; but the accused had not entered appearance despite the issue of non-bailable warrant against the accused on several occasions. On 26/3/2002, it was directed that the complainant must be present personally and an affidavit should be filed. On that day, the affidavit was not filed. Consequently on the next date of posting, the learned Magistrate invoked the jurisdiction under Section 256 Cr.P.C to dismiss the complaint and acquitted the accused. I find no such contumacious latches to justify the the dismissal of this Crl.M.C will not in any way fetter the rights of the petitioner to raise all appropriate and relevant contentions at later stages. of that complaint. 2. Notice has been served on the respondent. There is no appearance. A copy of the order sheet has been placed Crl.A.No.756/02 2 before me. I am satisfied, in the facts and circumstances of this case that the invocation of the jurisdiction under Section 256 Cr.P.C to dismiss the criminal complaint filed by the petitioner was not justified. 3. This appeal is accordingly allowed. The impugned order of acquittal is set aside. The appellant must appear before the learned Magistrate on 12/12/2008 to continue with the proceedings. (R.BASANT, JUDGE) jsr Crl.A.No.756/02 3 Crl.A.No.756/02 4 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006