IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 CRL.A.No. 1533 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.536/2007 Dated 03/08/2007 CC.147/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II, ERNAKULAM .................... APPELLANT: COMPLAINANT: ----------------------- M/S.AYYAPPA ROLLER FLOUR MILLS LTD., IV/758, SOUTH KALAMASERY, KOCHI REPRESENTED BY ITS POWER OF ATTORNEY, MR.CHARLEY RODRIGUES. BY ADV. SRI.C.A.MAJEED RESPONDENTS: ACCUSED: --------------------- MR.N.PARAMESWARAN NAIR, M/S.KARNAKI AGENCIES, PADMALAYAM, KURIYATTI, PANAKODE P.O., NEDUMANGADU, TRIVANDRUM. BY ADV. SRI.NAGARAJ NARAYANAN FOR R2 SRI.RAJAN VELLOTH FOR R2 SRI.SAIJO HASSAN FOR R2 SRI.A.S.SABU FOR R2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1533 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 O R D E R The appellant is the complainant in a prosecution under section 138 of the N.I. Act. Cognizance was taken. The accused had entered appearance and subsequently started absconding. Non-bailable warrant was ordered to be issued against the accused on 13.10.2006. Till 11.6.2007 the appellant did not appear. Of course, the accused, who had once appeared and was enlarged on bail, did not also appear during the interregnum. As no steps were taken and the appellant and his counsel were not present, the learned Magistrate invoked the jurisdiction under Section 256 Cr.P.C. to dismiss the complaint. 2. The learned counsel for the appellant submits that the cheque is for an amount of Rs.1,47,600/- The appellant was interested in prosecuting the complaint. But unfortunately there was omission on the part of the clerk of the counsel to make note of the date of posting and take necessary steps. It is only because Crl.A.No. 1533 of 2007 2 of this that the complainant was absent and did not take necessary steps in time. A lenient view may be taken and the complainant may be given an opportunity to prosecute his complaint. The accused had not entered appearance and in fact he, who had entered appearance earlier, was absconding was really the reason for protraction of the proceedings. The accused is not entitled to the advantage of termination of proceedings otherwise than on merits, submits the counsel. 3. Of course, the accused is not entitled for any advantage/benefit, he having himself absconded from 13.10.2006. There is contumaciousness on the part of the complainant in not taking steps from 13.10.2006 to 11.6.2007. I am satisfied that subject to appropriate terms, the appellant can be given an opportunity to further prosecute his complaint. 4. In the result: a) This appeal is allowed, subject to conditions. b) The impugned order shall stand set aside and the complaint shall thereafter be disposed of on merits on condition that the appellant Crl.A.No. 1533 of 2007 3 deposits an amount of Rs.5,000/- as cost to the District Legal Services Authority on or before 17.10.2008. c) The parties shall appear before the learned Magistrate on 18.10.2008 to continue the proceedings. If cost is not paid by 17.10.2008, the learned Magistrate shall make note of the same on 18.10.2008 and thereupon the impugned order shall remain. (R. BASANT) Judge tm