IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Crl.Rev.Pet.No. 2095 of 2009() ------------------------------ ST.372/2008 of JUDICIAL FIRST CLASS MAGISTRATE-V, ERNAKULAM .................... REVN. PETITIONER(S)/COMPLAINANT: --------------------- M.A.JOSEPH, AGED 70, MALIAKKAL HOUSE PALLURUTHI, COCHIN 692 006. BY ADV. SRI.E.G.GORDEN SRI.G.ANOOP MOHAN RESPONDENT(S)/ACCUSED AND STATE: --------------- 1. A.S.SANTHOSH, S/O.A.K.SANKARAN ORBIT REVOLVING RESTAURANT RAJAJI ROAD, COCHIN 682 035. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2095 of 2009 -------------------------------------- Dated this the 2nd day of July, 2009. ORDER Notice to respondent No.1 is dispensed with since the order under challenge is one under Section 204(4) of the Code of Criminal Procedure (for short, the Code”) dismissing the complaint as process fee was not paid. I heard counsel for petitioner and Public Prosecutor who took notice for respondent No.2. 2. Petitioner filed a private complaint against respondent No.1 for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). On 30.1.2009 there was no representation for petitioner and process fee was not paid. Hence learned magistrate dismissed the complaint under Section 204 (4) of the Code. It is contended by learned counsel that it was on account of mistake in noting the posting date that there happened to be no representation in the court below on 30.1.2009. 3. In the memorandum of revision it is stated by petitioner that as directed earlier, he had taken all the steps and on 22.9.2008 learned magistrate ordered steps under Sections 82 and 83 of the Code . Case was posted on 30.12.2008. According to the petitioner steps were taken as early as on 15.11.2008. On 30.12.2008 since steps under Sections 82 and 83 of the Code Crl.R.P.No.2095/2009 2 were not over case was posted on 30.1.2009. Petitioner mistakenly noted the date of posting as 3.2.2009 and hence failed to appear in the court below on 3.1.2009. On hearing learned counsel, I am not inclined to think that non- appearance in the court below on 3.1.2009 was willful. Hence I am inclined to give an opportunity to the petitioner to take necessary steps and prosecute the case. Resultantly, this revision is allowed. Order under challenge is set aside and the case is remitted to the court below for disposal as provided under law. Petitioner will be given an opportunity to take necessary steps. Petitioner shall appear in the court below on 5.8.2009. THOMAS P.JOSEPH, Judge. cks