IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 CRL.A.No. 1445 of 2008() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.561/2008 Dated 07/07/2008 CC.1309/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... APPELLANT: COMPLAINANT ---------------------- VIJAYAKUMAR.T, NIRANJANA, NORTH ROAD, AYYANTHOLE, TRICHUR DISTRICT. BY ADV. SRI.B.PREMNATH (E) RESPONDENTS: ACCUSED AND STATE ------------------------------ 1. ORCHID DESIGNS(P)LTD, NO.3, MUTHIAL REDDY STREET, ALANDUR, CHENNAI-6, REPRESENTED BY ITS DIRECTOR ANTONY VARGHESE. 2. ANTONY VARGHESE, DIRECTOR, ORCHID DESIGNS(P)LTD., NO.3, MUTHIAL REDDY STREET, ALANDUR, CHENNAI-6. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.1445 of 2008 ------------------------------------- Dated this the 24th day of July, 2008 J U D G M E N T The appellant in this appeal challenges the dismissal of a complaint filed by him under Section 138 of the Negotiable Instruments Act and consequent acquittal of the accused under Section 256 Cr.P.C. 2. The learned counsel for the appellant submits that absence of the complainant on the date of the impugned order was of no consequence and even without the presence of the complainant, the case could have been proceeded with by the learned Magistrate. The accused had not entered appearance at all in spite of all coercive steps taken. In these circumstances, the learned Magistrate could have directed the appellant to take necessary steps even in the absence of the appellant and the invocation of the jurisdiction under Section 256 Cr.P.C is not justified, submits the learned counsel for the appellant. 3. I find merit in that contention. I am satisfied that the impugned order deserves to be set aside. I am further satisfied that the accused having not entered appearance before the court Crl.Appeal. No.1445 of 2008 2 below till the date of the impugned order, it is not necessary to wait for issue and return of notice to the respondent/accused to dispose of this appeal. 4. In the result: i) This Appeal is allowed; ii) The impugned order is set aside; iii) The learned Magistrate shall dispose of the case afresh in accordance with law; iv) The appellant shall appear before the learned Magistrate along with a copy of this judgment on 11.08.08. 5. The complainant shall take all necessary steps to issue processes against the accused by that date. (R.BASANT, JUDGE) rtr/-