IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 Crl.Rev.Pet.No. 1633 of 2011() ------------------------------ CC.296/2008 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... PETITIONER/COMPLAINANT --------------------- T.PRASANNAKUMAR, S/O.LATE THANKAPPAN NAIR, AGED 45, PROPRIETOR, KNT AND SONS, DD TEX WORLD, MARKET ROAD, ERNAKULAM. BY ADV. SRI.R.MURALEEKRISHNAN SMT.T.M.RESHMY RESPONDENTS/ACCUSED AND STATE: --------------- 1. SHAJI, `HASH BUSH', MARKET ROAD, MUVATTUPUZHA, RESIDING AT MAMBAZHAKARAYIL HOUSE, PUTHUPPADY P.O., PERUMUTTAM, MUVATTUPUZHA, ERNAKULAM DISTRICT. PIN: 686673 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.-PIN: 686031 PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------------- Crl.R.P.No. 1633 of 2011 --------------------------------------------- Dated this the 20th day of October, 2011 ORDER The revision is directed against the dismissal of the complaint of the petitioner, for prosecuting the first respondent for the offence under Section 138 of the Negotiable Instruments Act. Cognizance was taken over such complaint, and, in response to the summons issued, the accused appeared, who pleaded not guilty. Trial proceeded and at the stage of questioning under Section 313 of Cr.P.C. the accused absconded. Complainant was directed to take steps for issuing non-bailable warrant to secure the presence of the accused. Attempts made by taking steps were not successful. He was again directed to take fresh steps for issuing non-bailable warrant. According to the complainant, with such order, after the case was adjourned to 1.6.2011, subsequently, the 'A' diary of the court was corrected as if the posting date was 6.1.2011. The case was taken up on 6.1.2011 and then noting that the complainant was absent and no steps were taken, it was dismissed under Section 204 (4) of the Code. 2. Taking note of the aforesaid case canvassed by the Crl.R.P.No. 1633 of 2011 2 complainant, a report from the magistrate concerned was called for. Report sent by the magistrate would indicate that it was based on some information collected from the predecessor and also verification of the records. No such enquiry was directed to be conducted other than to report whether the 'A' diary contained any correction as imputed. The report shows that 'A' diary contained corrections as regards the posting date of the case and such corrections were not authenticated. In the facts and circumstances presented, the case canvassed by the revision petitioner/complainant to impeach the order dismissing his complaint cannot be brushed aside as meritless. Further more when the accused has entered appearance and the trial proceeded, there was no question of dismissing the complaint under Section 204 (4) but only of passing an order as under Section 256, in the event of non appearance of the complainant. The impugned order cannot be sustained on any ground. 3. Setting aside the order, the magistrate is directed to take back the complaint on file and dispose it, in accordance with law after providing an opportunity to the complainant to take coercive steps to secure the presence of the complainant in Crl.R.P.No. 1633 of 2011 3 the case. Complainant is directed to appear before the magistrate on 21.11.2011. Revision disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE. Rkc //True Copy// PA to Judge