IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 CRL.REV.PET.NO. 2019 OF 2009() ------------------------------ ST.3138/2003 OF ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S) - COMPLAINANT: ------------------------------------------------------ SURESH BABU, S/O. ELIAS, AGED 41 YEARS, KOCHUPARAMBIL, MANNATHUR, ERNAKULAM. BY ADV. SRI.SHAJI P.CHALY RESPONDENT(S) - ACCUSED NOS.1 AND 2: -------------------------------------------------------- 1. GEORGE MATHEW, MANAGING DIRECTOR, SOLAR TECHNOLOGIES & SERVICES INDIA (P) LTD. VALLAMATTOM BUILDINGS, NEAR COCHIN SHIPYARD, ERNAKULAM. 2. SOLAR TECHNOLOGIES & SERVICES, INDIA (P) LTD., VALLAMATTOM BUILDINGS NEAR COCHIN SHIPYARD, ERNAKULAM REPRESENTED BY ITS MANAGING DIRECTOR. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 2019 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of July, 2009 O R D E R -------------- Notice to respondent Nos.1 and 2 is dispensed with since the order under challenge is one under Section 204(4) of the Code of Criminal Procedure (for short, “the Code”). Heard counsel for petitioner and Public Prosecutor who took notice for respondent No.3. 2. Petitioner preferred a private complaint in the court of learned Additional Chief Judicial Magistrate, Ernakulam against respondent Nos.1 and 2 alleging offence punishable under Section 138 of the Negotiable Instruments Act. It would appear that initially on steps taken by petitioner, respondent No.1 appeared in the court below through counsel but thereafter he did not turn up. Learned Additional Chief Judicial Magistrate ordered process to respondent No.1 and posted the case on 10.2.2009. On that day petitioner was absent. Learned counsel for petitioner submitted that petitioner was represented by counsel on that day. Since steps were not taken to issue notice to respondent No.1 compliant was dismissed under Section 204(4) of the Code. Learned Additional Chief Judicial Magistrate also ordered that respondent No.1 is acquitted under Sec.256(1) of the Code. That order is under challenge in this revision. CRL. R.P. No.2019 of 2009 -: 2 :- 3. No doubt, an order of acquittal under Sec.256(1) of the Code is not subject to a revision since the Code provides for an appeal against acquittal in a case arising on a private complaint though with the special leave of the court under Sec.378(4) of the Code and hence by virtue of Sec.401(4) of the Code no revision would lie at the instance of the party who could have appealed. But for invoking Sec.378(4) of the Code there must be an acquittal of the accused as contemplated under the Code. Section 256(1) of the Code certainly contemplates acquittal of the accused for absence of complainant. In this case learned counsel submitted that though petitioner was absent in the court on 10.2.2009, counsel represented him. That amounted to appearance of petitioner since otherwise presene of petitioner in court was not required for any purpose. Hence there was no scope for acquittal stated to be under Sec.256(1) of the Code. At any rate, acquittal of respondent No.1 in this case under Sec.256(1) of the Code is consequent to the dismissal of the complaint, obviously under Sec.204(4) of the Code for failure of the petitioner to take steps. In such a situation, it cannot be said that remedy of the petitioner is by way of appeal under Sec.378(4) of the Code. Dismissal of the complaint under Sec.204(4) of the Code is not appealable and hence this Court is competent to exercise its revisional power in respect of the impugned order. CRL. R.P. No.2019 of 2009 -: 3 :- 4. I shall refer to the question whether dismissal of the complaint under Sec.256(1) of the Code is justified. Learned counsel submitted that petitioner had taken steps on 10.2.2009 and it is without considering that, complaint was dismissed on that day itself. There is no reason to think that without exhausting the process if any already produced, learned Additional Chief Judicial Magistrate directed petitioner to take necessary steps. At the same time I do not find wilful laches or negligence on the part of petitioner. Hence I am inclined to give an opportunity to the petitioner to take necessary steps. Resultantly, this revision is allowed. The impugned order dismissing the complaint under Sec.204(4) of the Code is set aside. The case is remitted to the court below for disposal in accordance with law after giving petitioner an opportunity to take necessary steps. Petitioner shall appear in the court of learned Additional Chief Judicial Magistrate, Ernakulam on 3.8.2009. THOMAS P.JOSEPH, JUDGE. vsv