IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 CRL.A.No. 59 of 2002() ---------------------- CC.754/1998 of J.F.C.M, SASTHAMKOTTAH .................... APPELLANT: COMPLAINANT ---------------------- P.GANESAN, VENNIPUZHA VEEDU, HEKKUM BHAGOM MURI, THEKKUM BHAGOM VILLAGE, CHAVARA, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENTS: ACCUSED & STATE ----------------------------- 1. YESUDASAN, PUTHEZATHU KIZHAKKATHIL, KULA KULANGARA BHAGOM, CHAVARA, KOLLAM DIST (FROM THAMARATHAZHE PUTHUVAL, VADAKKUM BHAGOM). 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal No.59 of 2002 ------------------------------------- Dated this the 7th day of August, 2008 JUDGMENT Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.10,000/-. The complaint was filed and cognizance was taken as early as in 1998. The matter underwent several adjournments. On 27.09.01, the date on which the impugned order was passed under Section 256 Cr.P.C, the case was posted for steps under Section 82/83 Cr.P.C. A head constable had to be examined and it was for that purpose that the case was posted. The appellant, on account of reasons beyond his control, could not appear before the court on that day. He had allegedly informed his counsel. But the counsel assured him that as his presence is not necessary for the progress of the case, his absence will not matter. But unfortunately when the case was called, the appellant and his counsel happened to be absent and the learned Magistrate thereupon invoked the powers under Section 256(1) Cr.P.C. Accordingly the impugned order was passed. 2. The learned counsel for the appellant submits that it would be harsh, insensitive and cruel to compel the appellant to Crl.Appeal No.59 of 2002 2 suffer an order under Section 256 Cr.P.C for the mere fact that he happened to be absent on a date when the case was posted not for performance of anything for which his personal presence was necessary. Accordingly he prays that a lenient view may be taken and the impugned order may be set aside and the complainant may be given an opportunity to substantiate his complaint. 3. Respondent has been served. There is no appearance. I have gone through the order sheet in the case to ascertain the nature of the proceedings and the conduct and attitude of the complainant. I find the submissions of the learned counsel for the appellant to be absolutely justified. I am satisfied that the learned Magistrate is not justified in invoking the jurisdiction under Section 256 Cr.P.C. 4. It is true that under Section 256 Cr.P.C, the Magistrate is invested powers to dismiss a complaint for absence of the complainant. But such power is to be invoked and exercised sparingly and only if the situation so demands. Merely because a complainant is absent, it is not invariable that the complaint must be dismissed. The court, contemplating invocation of powers under Section 256 Cr.P.C, must certainly consider whether the personal presence of the complainant was necessary on that date of posting to facilitate progress of the case. In the instant case, Crl.Appeal No.59 of 2002 3 the accused had not appeared. Coercive processes were issued against the accused. But still his presence could not be secured. Only to verify whether steps under Sections 82 and 83 Cr.P.C have been pursued properly by the police, the case was posted on the date of the impugned order. In any view of the matter, I am satisfied that a lenient view is liable to be taken and the impugned order is liable to be set aside. I find no reason for the appellant, who was diligently prosecuting his case all along, to lose interest in the prosecution on that day. 5. In the result: i) This appeal is allowed; ii) The impugned order is set aside; iii) The learned Magistrate is directed to dispose of the complaint afresh in accordance with law; iv) Registry shall send back the records to the court below forthwith; v) The appellant shall appear before learned Magistrate on 05.09.08 with a copy of this judgment to continue the proceedings. 6. Hand over a copy of this order to the learned counsel for the appellant. (R.BASANT, JUDGE) rtr/- Crl.Appeal No.59 of 2002 4