IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 CRL.A.No. 1392 of 2008(D) ------------------------------------- (S.T. NO. 2633/2007 OF THE J.F.C.M. COURT-VII, ERNAKULAM) ................. APPELLANT/ COMPLAINANT: ------------------------------------------ M/S KERALA STATE INDUSTRIAL DEVELOPMENT CORPORTION LTD., (KSIDC), CHOICE TOWERS, MANORAMA JUNCTION, COCHIN -682 016, REPRESENTED BY ITS MANAGER (LEGAL), SMT. V.R. USHA. BY ADV. SRI.A.K.SRINIVASAN. RESPONDENTS/ ACCUSED AND STATE: --------------------------------------------------------- 1. M/S IPATH INDIA (P) LTD., G-358, PANAMPILLY NAGAR, COCHIN 682 036, REPRESENTED BY MANAGING DIRECTOR MR. A.S. DEVARAJ. 2. MR. A.S DEVARAJ, MANAGING DIRECTOR, M/S IPATH INDIA (P) LTD., S/O A.K. SUBRAMANIAN, APPACHATH, V.P. THURUTU P.O., CHENDAMANGLAM, ERNAKULAM -683 512 3. MR.C.D. SREENATH, DIRECTOR, M/S IPATH INDIA (P) LTD., S/O C.G. DAMODARAN, CHETTIPARAMBIL HOUSE, ALATHUR P.O., ANNAMANADA, THRISUR -680 741. 4. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HONOURABLE HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal No.1392 of 2008 ------------------------------------- Dated this the 17th day of July, 2008 J U D G M E N T Appellant is the complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. The case was filed before the learned Chief Judicial Magistrate. Cognizance was taken and the case was made over to the learned Judicial Magistrate of the First Class-VI, Ernakulam. Before that court, the petitioner had taken necessary steps to issue process against the accused. The accused had not entered appearance. Non bailable warrant of arrest was ordered against the accused. When the case came up for hearing on 29.04.08, there was no sitting and the case was adjourned to 03.05.08. On 03.05.08, as the appellant could not appear before the learned Magistrate and his counsel could not make proper representation. Even without making any note about the non bailable warrant issued, the learned Magistrate proceeded to dismiss the application under Section 256 Cr.P.C. 2. The learned counsel for the appellant submits that it is true that the appellant happened to be absent. That absence was Crl.Appeal No.1392 of 2008 2 on account of the unfortunate circumstances. The appellant and his counsel could not appear before the learned Magistrate on account of reasons beyond their control. Even accepting that they should have appeared before the learned Magistrate, the counsel submits that their absence should not be considered as a sufficient reason for dismissal of the complaint. The case was posted to 03.05.08 not for performance of any specific act on the part of the complainant. Whether the complainant was present or not and whether the complainant was represented by counsel or not, the learned Magistrate could have verified whether the non bailable warrant issued has been executed and if not, specify the further steps that must be taken by the appellant or his counsel. It is true that under Section 256 Cr.P.C the dismissal is legally possible and permissible for the absence of the complainant. But such powers are not to be invoked mechanically and applied. In the facts and circumstances of this case, it is evident that directions were issued for issue of non bailable warrant. The same had to be returned. Presence or absence of the complainant would not have made any difference and the learned Magistrate could have verified the execution of the non bailable warrant. Crl.Appeal No.1392 of 2008 3 3. The accused/respondent had not appeared before the learned Magistrate and I am of the opinion that in these circumstances it is not necessary in this Criminal Appeal to wait any further for issue and return of notice to the accused. 4. In the result: i) This Criminal Appeal is allowed; ii) The impugned order of acquittal is set aside; iii) The appellant shall appear before the learned Magistrate on 11.08.08 along with a copy of this judgment; iv) The learned Magistrate shall proceed to dispose of S.T.No.2633 of 2007 in accordance with law as expeditiously as possible. (R.BASANT, JUDGE) rtr/-