IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 CRL.A.No. 1257 of 2008() ------------------------ ST.185/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... APPELLANT: PETITIONER/COMPLAINANT --------------------------------- NAGARJUNA HERBAL CONCENTRATES LTD., REPRESENTED BY SHRI.BINU JOSE, LEGAL OFFICER, NAGARJUNA HERBAL CONCENTRATES LIMITED, KALAYAMTHANI. BY ADV. SRI.K.K.CHANDRAN PILLAI RESPONDENTS: RESPONDENTS/ACCUSED -------------------------------- 1. K.P.RAMESAN VAIDYAR, KODAKKATTUPARAMBIL HOUSE, MUNDERI, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal No.1257 of 2008 ------------------------------------- Dated this the 31st day of July, 2008 JUDGMENT In this appeal the appellant assails the dismissal of a complaint under Section 138 of the Negotiable Instruments Act and the consequent order of acquittal passed in favour of an accused invoking the powers under Section 256 Cr.P.C. The learned counsel for the petitioner submits that the absence of the petitioner was not wilful or deliberate. He was diligently prosecuting his complaint. He was present personally on 31.10.03. The accused, who was served, did not appear before the learned Magistrate and consequently non bailable warrant was issued against the accused. On 31.10.03, the learned Magistrate noted the presence of the complainant and posted the cae to 10.12.03 for return of the non bailable warrant. On 10.12.03 the complainant happened to be absent. The accused had also not appeared. The learned Magistrate at this juncture chose to invoke the jurisdiction under Section 256 Cr.P.C. 2. The learned counsel for the appellant contends that it is not necessary to wait for issue and return of notice to the respondent/accused in this appeal as the accused had not at all Crl.Appeal No.1257 of 2008 2 appeared before the learned Magistrate. I find merit in that submission. It is not necessary to issue notice to the respondent/accused in this appeal. 3. The learned counsel for the appellant then contends that on 10.12.03, the personal presence or absence of the complainant could not make any difference for the progress of the case. The case was posted only for appearance of the accused and the accused had not appeared also. In these circumstances, the dismissal of the complaint on such a date on the excuse that the complainant was absent is totally unjustified, submits the learned counsel for the appellant. I agree with the learned counsel for the appellant. I am satisfied that the powers under Section 256 Cr.P.C were invoked without sufficient justification. 4. In the result: i) This appeal is allowed; ii) The impugned order of acquittal is set aside; iii) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law; iv) The petitioner is directed to appear before the learned Magistrate with a copy of this judgment on 25.08.08. 5. Hand over a copy of this order to the learned counsel for the appellant. (R.BASANT, JUDGE) rtr/-