IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 CRL.A.No. 450 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.88/2008 ST.4099/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... APPELLANT: COMPLAINANT ------------------------------ M/S. VAISHNAV SECURITIES, REGD. OFFICE AT DOOR NO.3/570, MADATHIL POTTAYIL COMPOUND, KERALASSERY VILLAGE, PALAKKAD-678 641, REPRESENTED BY THE P/A AGENT MR. V.JAYAKUMAR, S/O. VELAYUDHAN EZHUTHASSAN, MARIKULAMBU, KUDALLUR P.O. BY ADV. SRI.K.P.BALAGOPAL RESPONDENTS: ACCUSED & STATE --------------------------------------- 1. SURESHKUMAR, S/O. VELAYUDHAN, VETTATH HOUSE, NAMBAZHIKKAD P.O., MATTAM (VIA), THRISSUR. 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 06/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl. Appeal No. 450 OF 2008 ----------------------------------------------- Dated this the 6th day of June, 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. A complaint was filed and cognizance was taken in the year 2006. The case stood posted to 09.11.2007. On that day there were attempts to settle the dispute. The case was posted to 01.12.07 to report settlement. But on that day there was no representation for the complainant and the complainant was absent. The learned Magistrate, in these circumstances, proceeded to dismiss the complaint invoking powers under Section 256 Cr.P.C. 2. The learned counsel for the appellant submits that the appellant was not guilty of any contumacious laches. All through he has been appearing before the Court and taking all necessary steps to prosecute the complaint. But when the case was adjourned on 09.11.07, the complainant and his counsel understood that the case was posted to 04.12.07. They did not know that the case was posted on 01.12.07. On 04.12.07 it was revealed that the complaint had been already dismissed on 01.12.07. It is prayed that a lenient view may be taken and the CRA No. 450 OF 2008 2 appeal may be allowed with liberty to prosecute his complaint. 3. Respondents though served, there is no representation. In the facts and circumstances of this case, I am satisfied that a lenient view can be taken and the appeal can be allowed with liberty to prosecute his complaint. 4. In the result, this appeal is allowed. The impugned order is set aside. The learned Magistrate is directed to dispose of the complaint afresh in accordance with law. The parties are directed to appear before the learned Magistrate on 14.07.2008 to continue the proceedings. Send back the records immediately to the court below. R. BASANT, JUDGE ttb CRA No. 450 OF 2008 3 CRA No. 450 OF 2008 4