IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 CRL.A.No. 1642 of 2008() ------------------------ ST.250/2006 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... APPELLANT: COMPLAINANT: ----------------------- K.SATHEESH KUMAR, S/O.K.R.RADHAKRISHNA KURUP, AGED 35, RESIDING AT KOYILOTH (H) ARAKKILAD P.O., PUTHUR, VADAKARA TALUK. BY ADV. SRI.PULIKKOOL ABUBACKER RESPONDENTS: ACCUSED: --------------------- 1. A.K.RAJESWARI, W/O.MOHANDAS, AGED 32/2004, RESIDING AT GOPALAPURAM, P.O.MOODNADI, MOODNADI VILLAGE, KOYILANDY TALUK. 2. STATE OF KERALA REPRESENTED BY PUBLICL PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.E.NARAYANAN FOR R1 SRI.SRINATH GIRISH FOR R1 PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.1642 of 2008 ---------------------------------------- Dated this the 12th day of August 2008 J U D G M E N T Heard. Admitted. Respondent/accused has already entered appearance. Both counsel have been heard. 2. This appeal is preferred against an order dismissing a complaint filed by the appellant alleging offences punishable under Section 138 of the Negotiable Instruments Act, invoking powers under Section 256(1) Cr.P.C on the ground that the complainant was not present when the case was called on 28/9/2006. The learned counsel for the appellant submits that the absence of the appellant before court on 28/9/2006 was on account of reasons absolutely beyond his control. He was held up in the traffic jam and could not reach the court in time to participate in the proceedings. In these circumstances, a lenient view may be taken and the impugned order may be set aside. It is submitted that the complainant was diligently prosecuting the complaint on all dates of posting and in these circumstances he does not deserve to suffer the consequence of dismissal for non- prosecution. Crl.A.No.1642/08 2 3. The learned counsel for the respondent opposes the prayer ; but notwithstanding the opposition, I am satisfied that a lenient view can be taken and the complainant can be given a further opportunity to prosecute his complaint. 4. 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 as expeditiously as possible. d) Both parties shall appear before the learned Magistrate and a copy of this judgment shall be produced by the learned counsel for the complainant before the learned Magistrate on 16/9/2008. Hand over copy of this order to the learned counsel for the complainant. (R.BASANT, JUDGE) jsr Crl.A.No.1642/08 3 Crl.A.No.1642/08 4 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006