IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.Rev.Pet.No. 3314 of 2008() ----------------------------------------- CMP.3003/2008 OF ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER/COMPLAINANT: --------------------------------------------------- S.GANAPATHY POTTY, T.C.29/1173(2), GANAGEETH, KOZHYYOTTU LANE, PALKULANGARA, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT/ACCUSED: ------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PORSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3314 OF 2008 ............................................ DATED THIS THE 30th DAY OF SEPTEMBER, 2008 ORDER Petitioner is the complainant before Additional Chief Judicial Magistrate, Thiruvananthapuram. Complaint is that first respondent committed offence under Section 138 of N.I.Act. Case of petitioner is that towards repayment of Rs.7,00,000/-, accused issued a cheque, which was dishonoured for want of sufficient funds and he had complied with all the statutory formalities provided under the Act. Complaint was filed on 17.6.2008. It was posted to 15.7.2008 for verification of the records. When the case was taken up on that day, complainant was not present. His counsel was also not present, as the Advocates were boycotting the courts at Thiruvananthapuram on that day. Learned Magistrate dismissed the complaint under Section 203 of Code of Criminal Procedure. This petition is filed under Section 397 and 401 of Code of Criminal Procedure stating that the absence of petitioner was not wilful and on 15.7.2008, he was not directed to appear and his counsel did not appear because of the boycot and in such circumstances, the order is to be quashed. CRRP 3314/2008 2 2. Learned counsel appearing for petitioner was heard. Learned counsel submitted that petitioner was not directed to appear before the court on 15.7.2008 and the case was posted only for verification of records and in such circumstances, dismissal of the petition under Section 203 of Code of Criminal Procedure was illegal and therefore it is to be quashed. 3. Though absence of the counsel on account of boycot of courts on 15.7.2008 cannot be justified, for the failure of the counsel, the party cannot be made to suffer. It is more so because the order of learned Magistrate itself shows that on 15.7.2008, case was not posted for recording sworn statement of the complainant and instead, was posted only for verification of records. Therefore the order dated 15.7.2008 is quashed. Learned Magistrate is directed to take the complaint on file and proceed in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk/-