IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 Crl.Rev.Pet.No. 243 of 2009() ---------------------------------------- CMP.3539/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER(S): COMPLAINANT: --------------------------------- HAZEENA NAJEEB, W/O.C.E.NAJEEB, AGED 40 YEARS, RESIDING AT SHANAS MANZIL, SHASTHA JUNCTION, PALLURUTHY, KOCHI-6. BY ADV. SRI.T.MADHU RESPONDENT(S): ACCUSED & STATE: ---------------------------- 1. FENIX NETO, KIZHAKKEKOTTATHARA HOUSE, DOOR NO. 20/2622, C.K.SREEDHARAN ROAD, KONAM, PALLURUTHY, COCHIN-6. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 243 OF 2009 =========================== Dated this the 21st day of January,2009 ORDER Revision petitioner is the complainant in CMP 3539/2007 on the file of Judicial First Class Magistrate-II, Kochi. Complaint was filed alleging that first respondent has committed an offence under section 138 of Negotiable Instruments Act. Complaint was dismissed by the learned Magistrate on 2.9.2008 under sub section (4) of Section 204 of Code of Criminal Procedure for the reason that there was no representation when the case was called and no postage as directed was seen paid and process could not be issued for the fault of the revision petitioner. The order is challenged in this revision. As the dismissal was under section 204 of Code of Criminal Procedure, before the appearance of first respondent, it is not necessary to issue notice to first respondent. 2. Learned counsel appearing for revision CRRP 243/2009 2 petitioner was heard. 3. The argument of the learned counsel is that the case stood posted to 26.5.2008 and thereafter it was adjourned to 31.8.2008 a Sunday and petitioner was not aware that the case will be called on 1.9.2008 and 1.9.2008 revision petitioner could not make any representation and it was posted to 2.9.2008 and on that day as there was no representation, the complaint was dismissed under section 204 of Code of Criminal Proceudre. It was submitted that revision petitioner had produced a notice but it was omitted to be brought to the notice of the court as the counsel was absent and it is in such circumstance, the complaint happened to be dismissed and in the interest of justice , an opportunity is to be granted. 4. Considering the entire facts and circumstances of the case, interest of justice warrants that an opportunity is to be granted to the revision petitioner to take steps to issue notice to first respondent. CRRP 243/2009 3 Revision is allowed. The order dismissing the complaint under section 204 is set aside. CMP 3539/2007 is restored to the file of Judicial First Class Magistrate Court, Kochi. The Magistrate is directed to proceed with the complaint in accordance with law. Revision petitioner is directed to take steps to issue notice to first respondent within ten days from today. It is made clear that if revision petitioner fails to take steps, Magistrate is at liberty to dismiss the complaint under section 204(4) of Code of Criminal Procedure. Revision petitioner is directed to appear before Judicial First Class Magistrate, Kochi on 30.1.2009. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006