IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 CRL.A.No. 1650 of 2008() ------------------------ ST.572/2005 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT: APPELANT/COMPLAINANT ------------------------------- G.MOHAN, VAYALIL PATTOOR KUNNUKUZHY ROAD THIRUVANANTHAPURAM, REP. BY HIS POWER OF ATTORNEY HOLDER MR.PRADEED KUMAR, PULLICKAL, KUNDAVOOR, ANAYARA PO., TRIVANDRUM BY ADV. SRI.A.DINESH RAO RESPONDENTS: ACCUSED AND STATE ------------------------------ 1. L.SURENDRAN, MOHAN SOUDHAM, THALAYIL, ARALUMMODU, NETTATINKARA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.SUMAN CHAKRAVARTHY FOR R1 PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.1650 of 2008 ---------------------------------------- Dated this the 12th day of August 2008 J U D G M E N T Heard. Admitted. Respondent/accused has already entered appearance. Both counsel have been heard. 2. This appeal is preferred against an order dismissing a complaint filed by the appellant alleging offences punishable under Section 138 of the Negotiable Instruments Act invoking powers under Section 256(1) Cr.P.C on the ground that the complainant was not present when the case was called on 16/5/2006. 3. The learned counsel for the appellant submits that the cheque is for an amount of Rs.1,00,000/-. The complaint was filed on 13/6/2005 and till 16/5/2006 the complainant had diligently been taking all necessary steps. The case has reached the stage of trial and the complainant had already filed the chief affidavit before the court on the previous date of posting. Unfortunately when the case was adjourned to 16/5/2006, the complainant and his counsel could not be present as they had wrongly noted that the case was posted to 22/5/2006. That is Crl.A.No.1650/08 2 why he happened to be absent on 16/5/2006. In any view of the matter, a lenient view may be taken and the complainant may not be deprived of the opportunity to seek disposal of the complaint on merit merely because such an error has been committed by him and his counsel in noting the date of the posting wrongly. 4. The learned counsel for the respondent opposes the application. It is pointed out that there has been enormous delay even after the impugned order in filing the complaint. This court had condoned the delay on payment of cost of Rs.750/- though the delay was long - 332 days. I am satisfied, in the facts and circumstances of this case that a lenient view can be taken and the complainant can be given a further opportunity to prosecute his complaint. There shall be a specific direction that if at the end of the proceedings compensation were to be awarded to the complainant, he shall not be entitled to any interest for the period from 16/5/2006, the date of the impugned order to this date. 5. In the result, a) This appeal is allowed. Crl.A.No.1650/08 3 b) The impugned order is set aside. c) The learned Magistrate is directed to dispose of S.T.No.572/2005 afresh in accordance with law as expeditiously as possible. d) Both parties shall appear before the learned Magistrate and a copy of this judgment shall be produced by the learned counsel for the complainant before the learned Magistrate on 16/9/2008. Hand over copy of this order to the learned counsel for the complainant. (R.BASANT, JUDGE) jsr Crl.A.No.1650/08 4 Crl.A.No.1650/08 5 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006