IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Crl.Rev.Pet.No. 10 of 2007() ---------------------------- CMP.5719/2005 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER: ------------------------------- FURORE APEALS (P) LTD., PENTA MENKA, ERNAKULAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SHRI MANOJ MOHAN. BY ADV. SRI.C.J.XAVIER SRI.NIDHI BALACHANDRAN RESPONDENTS: -------------------------- 1. SRI.NAJITH, PROPRIETOR COTTON CITY, OPPOSITE GOVERNMENT GHS, PERUMBAVOOR. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.10 of 2007 = = = = = = = = = = = = = = Dated this the 28th day of February, 2008 ORDER The petitioner, who is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act, 1881, in respect of a cheque for a sum of Rs.94,074/-, challenges the order dated 20.10.06 in C.M.P.No.5719 of 2005 on the file of the Chief Judicial Magistrate, Ernakulam dismissing the petition to condone the delay of 42 days in filing the complaint. 2. The dismissal of the petition was one for default. The learned Magistrate should have been indulgent in the matter. It is very easy to dismiss a complaint for the absence of a complainant and the remedy of such complainant will be to rush to the superior courts for redressal. The impugned order states that there was no representation and no affidavit filed. It is not clear as to whether the affidavit was proof affidavit or whether it was an affidavit in support of the delay petition. If the petition filed for condoning the delay explains the reason for the delay, there is no need for filing an affidavit. In fact, even a petition may not be necessary, if the complaint itself explains the delay. Crl.R.P.No.10 of 2007 2 Since the petition to condone the delay was dismissed without issuing notice to the accused, the impugned order is set aside. C.M.P.No.5719 of 2005 will stand restored to file before the Chief Judicial Magistrate, Ernakulam. 3. The petitioner shall appear before the court below without any further notice on 18.3.08, by which time he shall have cured the defects, if any, in the complaint and in the the petition to condone the delay and he shall have paid the requisite process fee also. This Crl.R.P is allowed as above. V. RAMKUMAR, JUDGE sj