IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 CRL.A.No. 1042 of 2008() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.333/2008 Dated 23/05/2008 CC.41/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, DEVICOLAM .................... APPELLANT: COMPLAINT:- ---------------------- MATHEW PHILIP, S/O PHILIP, THAYIL HOUSE, POTTENKADU KARA, BISONVALLY VILLAGE. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM. 2. SAJEEVAN,S/O KANNIAPPAN, PUTHENVEETTIL HOUSE, VYSERI, VATTILAPPAR P.O., VETTILAPPARA TRISSUR DISTRICT. BY ADV. SRI.M.H.HANIL KUMAR FOR R2 R1- BY P.P.SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2008, ALONG WITH CRL.A.NO.1043/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. --------------------------------------------- CRL.A.NOS.1042 & 1043 OF 2008-A ---------------------------------------------- Dated this the 7th day of August, 2008. JUDGMENT Appellant in these appeals is the complainant in two prosecutions both under Section 138 of N.I.Act. Cognizance was taken as early as in 2007. On 31.3.2008 on the ground that the complainant was absent, complaints were dismissed and the common accused was acquitted. 2. The learned counsel for the appellant contends that invocation of the power under Section 256 of Cr.P.C was totally unjustified. The learned counsel also contends that on 30.3.2008 and on 12.3.2008, the dates of prior posting of the case, the complainant was present. He has till then prosecuting his case with due diligence. He was personally present and chief affidavit was filed on 12.3.2008. But, unfortunately on 31.3.2008, the appellant could not present before the learned Magistrate. It is submitted that the counsel had informed the court that the appellant was on his way and the case may be kept aside. Without accepting that request, the learned Magistrate proceeded to dismiss the complaints under Section 256, it is submitted. CRL.A.NOS.1042&1043/08 . 2 3. The learned counsel for the appellant contends that there was no reason what so ever for the complainant not to prosecute the case diligently and to abstain from court on 31.3.2008. Such absence of the complainant when the case was called was purely on account of reasons beyond his control. In any view of the matter, the learned Magistrate must have taken a lenient view and posted the case to another day, if the learned Magistrate wanted the presence of the complainant. 4. The order sheet does not reveal that any such request was made by the learned counsel for the appellant. But, be that as it may, I am satisfied that a lenient view can be taken and the appellant can be granted an opportunity to prosecute his complaints. In the result: a. These appeals are allowed. b. The impugned orders passed under Section 256 of Cr.P.C are set aside. 3. Learned Magistrate is directed to dispose of the complaints afresh in accordance with law. Parties are directed to appear before the learned Magistrate CRL.A.NOS.1042&1043/08 . 3 on 6.9.2008 to continue the proceedings without waiting for any further direction from the court below. R. BASANT, JUDGE. cl