IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 CRL.A.No. 321 of 2008() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.119/2008 Dated 17/02/2008 ST.1028/2007 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... APPELLANT: COMPLAINANT: ----------------------- KOTTAYAM SOCIAL SERVICE SOCIETY, CHAITHANYA, THELLAKOM P.O., REPRESENTED BY ITS SECRETARY, FR.MICHAEL, VETTIKKATTU. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENTS: NON PARTY AND ACCUSED: ----------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SIBI JOSE, MANJAKKAL HOUSE, S.H.MOUNT POST, KUMARANALLOOR NOW WORKING AS M.V.CONSULTANT, T.T.OFFICE, OPPOSITE COLLECTORATE, KOTTAYAM-2. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.321 of 2008 ---------------------------------------- Dated this the 9th day of June 2008 J U D G M E N T The appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The complaint was filed as early as in 2006. On 5/12/07 when the matter came up for hearing, the complainant and his counsel were absent. The learned Magistrate, invoking the powers under Section 256 Cr.P.C had dismissed the complaint. 2. Respondent has been served. There is no representation for the respondent. The learned counsel for the appellant/complainant submits that the absence of the complainant occurred on account of reasons beyond his control. Proof affidavit had in fact been filed long earlier. The appellant was present or was represented by his counsel all along. Absence occurred on account of reasons beyond his control. The complainant's counsel has filed an affidavit showing the circumstances under which he could not be present on 5/12/2007. Crl.A.No.321/08 2 3. Respondent though served has not chosen to enter appearance. I have considered all the relevant circumstances. I am satisfied that a lenient view can be taken and the complainant can be given an opportunity to prosecute this complaint subject to appropriate conditions. 4. In the result, this appeal is allowed subject to conditions. If the appellant deposits an amount of Rs.1,000/- (Rupees one thousand only) before the learned Magistrate as cost payable to the respondent/accused within a period of one month from this date, the impugned order shall stand set aside and the learned Magistrate shall dispose of the complaint afresh in accordance with law. If the amount is deposited, the same shall be released to the complainant forthwith. 5. Parties shall appear before the learned Magistrate on 14/7/2008. If the amount is not deposited/paid as directed, the learned Magistrate shall make note of that fact and thereupon the impugned order shall remain. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.A.No.321/08 3 Crl.A.No.321/08 4 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006