IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 Crl.Rev.Pet.No. 2353 of 2009() ------------------------------ ST.2308/2003 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER/COMPLAINANT ------------------------------------------- MRS.SALY ZACHARIAHA, PROPRIETRESS, PHILIPSUN TRENDS, THEKKENETH BUILDINGS, NEAR MANORAMA JUNCTION, COCHIN-36. BY ADV. SRI.E.G.GORDEN SRI.G.ANOOP MOHAN RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. MR.VENUGOPAL, PROPRIETOR, AL-TECH ALUMINIUM, AKM BUILDING MANAR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSEUCTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2353 of 2009 -------------------------------------- Dated this the 23rd day of July, 2009. ORDER Notice to respondent No.1 is dispensed with since the complaint is dismissed under Section 204(4) of the Code of Criminal Procedure (for short, “the Code”) and revision arises from that order. Heard counsel for petitioner and the Public Prosecutor who takes notice for respondent No.2. 2. This revision is in challenge of order dated 27.8.2008 of learned Additional Chief Judicial Magistrate, Ernakulam dismissing the complaint under Section 204(4) of the Code and acquitting respondent No.1 under Section 256(1) of that Code. Petitioner filed the complaint against respondent No.1 for offence punishable under Section 138 of the Negotiable Instruments Act. On 27.8.2008 petitioner was absent, there was no representation, nor any application to excuse absence. Steps were also not taken to issue process. Learned Additional Chief Judicial Magistrate dismissed the complaint. Learned counsel submits that on 16.4.2003 sworn statement of the petitioner was recorded and case was taken on file. Thereafter either there was no sitting or the case was adjourned by notification till 25.7.2008. That day there was no representation for the petitioner. Case was then posted on 27.8.2008. That day also there was no Crl.R.P.No.2353/2009 2 representation for the petitioner. Learned counsel submits that a mistake in noting the posting date resulted in the absence of petitioner in the court below on those days. 3. I have gone through the proceedings sheet in S.T.No.2308 of 2003 and find that the case was called in the court below only on 25.7.2008 and 27.8.2008 as aforesaid. I find no reason to think that petitioner failed to appear in the court below and take necessary steps willfully. 4. Though learned Additional Chief Judicial Magistrate has observed in the order under challenge that respondent No.1 is acquitted under Section 256 (1) of the Code, that provision cannot apply since respondent No.1 had not appeared in the court. In effect it is a dismissal of the complaint under Section 204(4) of the Code. Resultantly, this revision is allowed. Order under challenge is set aside and the case is remitted to the court below for fresh disposal after giving the petitioner an opportunity to take necessary steps. Petitioner shall appear in the court below on 28.8.2009. THOMAS P.JOSEPH, Judge. cks