IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 CRL.A.No. 1096 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.359/2007 Dated 08/06/2007 CC.2251/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... APPELLANT: COMPLAINANT ----------------------- V.U.RAJU, S/O. ULAHANNAN, VALLITHAZHATHU HOUSE, PIRAVOM, ERNAKULAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENTS: ACCUSED --------------------- 1. BENNY VARGHESE, PAINGAMATTATHIL HOUSE, PIRAVOM P.O., PIRAVOM, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1096 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 JUDGMENT This appeal is preferred by the complainant in a prosecution under Section 138 of the N.I. Act against the dismissal of his complaint invoking the powers under Section 256 Cr.P.C. The impugned order reads as follows: “Complainant absent. Accused present. Original cheque not filed, inspite of repeated request. Complaint is dismissed u/s.256(1) Cr.P.C.” 2. The learned counsel for the appellant/complainant submits that the dismissal really was not for the reason of the absence of the complainant, but for the reason that the original cheque was not produced. It is the specific case of the complainant that the original cheque is lost. There is controversy about the circumstances under which the original cheque is lost. But the complainant does not want to embark on that controversy now. According to the complainant the original of the cheque is not presently traceable, but photocopy of the cheque is already Crl.A.No. 1096 of 2006 2 available. The appellant/complainant shall seek permission to adduce secondary evidence. That course has been approved in the decision in Chitaranjan v. Jayarajan (2005 (1) KLT 790). In these circumstances dismissal of the complaint for the apparent reason that the original cheque has not been produced on a date when the complainant happened to be absent is not justified, submits the learned counsel. 3. The respondent has been served. He has not entered appearance. 4. I find merit in the contention of the counsel for the appellant. It is evident that the dismissal was more for the reason that the original cheque had not been produced than for the reason that the complainant was absent. The case was not posted for any steps, for which the presence of the complainant was absolutely essential. Though the absence of the complainant is a sufficient reason to dismiss the complaint under Section 256 Cr.P.C., such power to dismiss the complaint is not to be invoked mechanically without application of mind. It is time and again repeated that unless the absence of the Crl.A.No. 1096 of 2006 3 complainant on a day where physical presence of the complainant is necessary for further progress of the case, the courts will not be justified in resorting to the powers under Section 256 Cr.P.C. to bring about premature termination of the prosecution. I am, in these circumstances, satisfied that the impugned order warrants interference. The complainant deserves to be granted a further opportunity to prosecute his complaint. 5. In the result: a) This appeal is allowed. b) The impugned order is set aside. c) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law. 6. The appellant shall appear before the learned Magistrate on 13.10.2008 to continue the proceedings. (R. BASANT) Judge tm Crl.A.No. 1096 of 2006 4