IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 1582 of 2011 -------------------------------------- (CC.54/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, PARAPPANANGADI) .................... REVN. PETITIONER(S): REVISION PETITIONER -------------------------------- K.P.VALSARAJAN, S/O.VELAYUDHAN, KOYAPPAPUTHUKATTIL, JALAJA NIVAS, CHETTIPPADI, PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.SUDHEER SRI.SUMODH MADHAVAN NAIR RESPONDENTS(S): STATE AND ACCUSED -------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.P.KALYANIKUTTY, PARAMPARAMABTH HOUSE, KARUVANOOTHARA, KODUVAYOOR POST-678501, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY FOR R2 BY PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR FOR R1. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P.No. 1582 of 2011 ---------------------------------------- Dated this the 30th day of June, 2011 ORDER The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') is the revision petitioner as he is aggrieved by the order dated 18.11.2009 in C.C.No.54 of 2009 of the court of the Judicial First Class Magistrate-II, Parappanangadi, by which his complaint is dismissed on the ground that the complainant is absent continuously from 29.9.2009 onwards. 2. Heard counsel for the petitioner. 3. Learned counsel submitted that originally, the case was instituted in the Judicial First Class Magistrate Court-I, Parappanangadi and the case was subsequently transferred to the present court on 11.2.2009 and thereafter, the accused surrendered on 16.3.2009. It is the further submission of the learned counsel that the case was referred to Adalath on 16.9.2009 and thereafter, a report was Crl.R.PNO.1582 of 2011 :-2-: received on 17.9.2009 from the Adalath that there was no settlement and the complaint was dismissed subsequently on 18.11.2009. From the above facts, it is crystal clear that the court has already taken cognizance upon the complaint preferred by the petitioner for the offence under Section 138 of the N.I.Act in which the cheque in question covers an amount of `.75,000/-. It is also discernible from the order that though the complainant was absent, he was represented and an application was filed to excuse his absence on the ground that he could not appear before the court as he was doing a contract work in Assam Rifles in the State of Assam. Therefore, it can be seen that there was no negligence on the part of the complainant in appearing before the court. However, it is a fact that though cognizance was taken in the year 2009, the matter was pending and it was disposed of not on merit, but because of the absence of the complainant. Considering the fact that cognizance was already taken and there is no decision on merit, I am of the view that the petitioner can be granted Crl.R.PNO.1582 of 2011 :-3-: one more opportunity to prosecute the complaint on merit, but subject to terms. In the result, this Criminal Revision Petition is disposed of setting aside the order dated 18.11.2009 in C.C.No.54 of 2009 of the court of Judicial First Class Magistrate -II, Parappanangadi on condition that the petitioner deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only). Accordingly,the revision petitioner/ complainant is directed to appear before the trial court either in person or through his counsel on 1st August,2011 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the petitioner has deposited the amount as directed above, proceed to dispose of the complaint in accordance with the procedure and law. The complainant is also directed to co-operate with the court for the trial and for an earlier disposal of the matter and he shall take steps towards the prosecution of the complaint without any failure. On deposit of the above amount, the learned Magistrate is Crl.R.PNO.1582 of 2011 :-4-: directed to pay a sum of `.1000/- to the accused on her appearance and the remaining amount of `.500/- shall be deposited in the State Exchequer. The Criminal Revision Petition is disposed of as above. V.K.MOHANAN, Judge MBS/ Crl.R.PNO.1582 of 2011 :-5-: V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:.. Crl.R.PNO.1582 of 2011 :-6-: