IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 Crl.Rev.Pet.No. 1030 of 2008 ------------------------------ CC.1153/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... REVN. PETITIONER: PETITIONER/COMPLAINANT ---------------------------------------- GEORGE, AGED 54, S/O OUSEPH, CHALAKUDY, PROPRIETOR OF M/S POPULAR MARBLES, CHALAKUDY, REPRESENTED BY HIS P.A.HOLDER, JOHNY, S/O OUSEPH , AGED 50 YEARS, PUDUSSERY HOUSE, CHALAKUDY. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENTS: ACCUSED & STATE ---------------------------- 1. DEVASSYKUTTY, S/O OUSEPH, NJALIAN HOUSE, KALAMBATTUPURAM, NEELASWARAM P.O. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.A.T.ANILKUMAR BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No. 1030 of 2008 = = = = = = = = = = = = = = Dated this the 28th March , 2008 ORDER Heard both sides. 2. The petitioner who is the complainant in C.C.No.1153/2003 on the file of the Judicial First Class Magistrate Court, Chalakudy which was a prosecution under Section 138 of the Negotiable Instruments Act, 1881 involving a cheque for Rs.55,800/-, challenges the order dated 27-10-2006 dismissing the complaint for default. 3. Since the dismissal of the complaint was after the appearance of the accused, notice of this revision was given to the first respondent/accused. It is not indicated in the order as to why the complaint has been dismissed. Merely because the complainant was absent that cannot entail dismissed of the CRL.R.P.NO. 1030/2008 -2- complaint. In a prosecution under Section 138 of the Negotiable Instruments Act, if the complainant is absent after the court has taken cognizance of the offence and after the appearance of the accused, the accused can only be acquitted under Section 256 Cr.P.C. Moreover, no reason has been stated as to why the presence of the complainant was necessary before the court below. Under these circumstances, the impugned order is set aside and C.C.No.1153/2003 shall stand restored to file. The petitioner as well as the first respondent/accused shall appear before the trial court without any further notice on 18-4-2008. By that time the petitioner shall be ready to get along with the further progress of the complaint. This Crl.revision petition is disposed of accordingly. V. RAMKUMAR, JUDGE ks.