IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 CRL.A.No. 380 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.65/2008 Dated 22/01/2008 CC.199/2006 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT: COMPLAINANT: ----------------------- N.T.JOY, S/O.THOMAS, NEDUMTHULLLI HOUSE, THURAVOOR VILLAGE, THURAVOOR, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.V.ANANDAN RESPONDENTS: ACCUSED: --------------------- 1. BHUVANENDRA KURUP, C/O.VASU, KALARIKKAL HOUSE, KONDOTTY P.O., CHOVARA, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal No.380 of 2008 ------------------------------------- Dated this the 21st day of May, 2008 ORDER Petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. Consequent to his non appearance before the learned Magistrate on 06.10.07, the complaint filed by him against the accused was dismissed invoking the powers under Section 256(1) Cr.P.C. The previous date of posting was on 09.08.07. There was a direction by the learned Magistrate to the complainant to comply with certain directions. 2. On 06.10.07 when the case was called, the complainant was not present. His counsel was also not present. The direction of the court on 09.08.07 was not complied with. It was, in these circumstances, that the learned Magistrate proceeded to pass the impugned order under Section 256(1) Cr.P.C. 3. The learned counsel for the petitioner submits that the petitioner has been alertly prosecuting his case all along. The accused was not appearing before the learned Magistrate. He was wilfully protracting the proceedings. Even in this Appeal, though he has been served, the accused has not entered appearance. Obviously the attempt is to vex and harass the Crl.Appeal No.380 of 2008 2 petitioner, it is submitted. On 06.10.07, the petitioner and his counsel were laid up and that is the reason why the petitioner was unable to appear before the learned Magistrate or get a representation made. It is prayed that under any circumstances, a lenient view may be taken and the petitioner may be given a further opportunity to prosecute his complaint. 4. Having considered all the relevant circumstances, I am satisfied that notwithstanding the lapse that took place on 06.10.07, the petitioner is entitled to be given a further opportunity to prosecute his case. 5. In the result: a) This Appeal is allowed; b) The learned Magistrate is directed to dispose of C.C.No.199 of 2006 afresh in accordance with law. 6. The petitioner shall appear before the learned Magistrate with a copy of this order on 05.07.08. All necessary steps shall also be taken by the petitioner before that date to secure the presence of the accused. 7. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/-