IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 CRL.A.No. 324 of 2010() ---------------------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.134/2010 Dated 15/02/2010 CC.145/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PUNALUR. ................................................................................. APPELLANT(S): PETITIONER/COMPLAINANT --------------------------------------------------------------- JOHN MATHEW, S/O. LATE V.C.JOHN, SAHANAPURI VEEDU, ELAMPAL.P.O., PUNALUR. BY ADV. SRI.S.RAJEEV RESPONDENT(S): ACCUSED & STATE ------------------------------------------------------ 1. LAWRENCE HENRY, PATTARUTHOPPIL, (ZEO VILLAH), SAKTHIKULANGARA.P.O., KOLLAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.KAMMAPU, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.Appeal No.324 of 2010 ------------------------------- Dated this the 1st day of March, 2010. J U D G M E N T This appeal is directed against an order dated 25.1.2010 in C.C.No.145/2009 of the Judicial Ist Class Magistrate Court IV, Punaloor, u/s.256(1) of Cr.P.C. 2. The above case is instituted upon a complaint preferred by the appellant alleging the offence u/s.138 of Negotiable Instruments Act, in which the cheque in question is for an amount of Rs.8 lakh. 3. From the impugned order it appears that, the complainant was neither present nor represented. The accused was absent and he had applied to excuse his absence. According to the learned Magistrate, in order to invoke section 256 of Cr.P.C., the 2nd consecutive absence of the complainant is sufficient. 4. The above approach of the learned Magistrate is diametrically opposed to the dictum laid down by this court in the decision reported in [ 2005 (2) KLT 1003 ] DON BOSCO VS. PARTECH COMPUTERS LTD. It is not Crl.Appeal No.324 of 2010 2 discernible from the impugned order as to for what purpose the case stood posted on the date of the impugned order. Hence, there is no materials to hold that the presence of the complainant is not inevitable. Therefore, the impugned order is liable to be set aside. In the result, this appeal is allowed directing the Judicial Ist Class Magistrate Court IV, Punaloor, to restore the case, ie., C.C.145/2009 on the date of the appearance of the complainant, who is directed to appear before the Court below on 03.04.2010, and the court below is further directed to proceed with the case in accordance with the law and procedure and dispose the same on merit. V.K.MOHANAN, Judge. ami/