IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 CRL.A.No. 372 of 2005() ----------------------- CRLP.128/2005 Dated 18/02/2005 CC.545/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT: COMPLAINANT ------------------------- M/S. AMBIKA TEXTILES, NO.4, D.D.BAZAR, GOPALAPRABHU ROAD, ERNAKULAM, KOCHI-682 035, REPRESENTED BY GIRISH KUMAR, "VYSAKHAM" KASTHURBA NAGAR, KOCHI-20, THE POWER OF ATTORNEY HOLDER OF THE PROPRIETRIX SMT.HARKAWAR TAWARI. BY ADV. SRI.MATHEW SKARIA RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. BABU PROPRIETOR, M/S. DEVI TEXTILES OPPOSITE K.S.R.T.C. BUS STAND, MAIN ROAD, ATTINGAL, PIN-695 101. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI P.A. SALIM THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 372 of 2005 ---------------------------------------- Dated the 3rd day of October, 2011 JUDGMENT Though notice was ordered against the Ist respondent before admission and the said notice was served, nobody has turned up and no objection is raised. Therefore, this appeal is admitted and according to me, this appeal can be disposed of at this stage since the impugned order is not on merit, but under section 204(4) of Cr.P.C. 2. It is also relevant to note that another learned Judge of this Court has granted leave under section 378(4) of Cr.P.C vide order dated 18.2.2005 in Crl.L.P. No.128 of 2005. 3. As the order under challenge is issued under section 204(4) Cr.P.C, having regard to the facts and circumstances involved in this case, particularly when there is no discussion on merit though cognizance was taken. I am of the view that the appellant/complainant can be granted one more opportunity to prosecute the matter. Accordingly, the appeal is allowed setting aside the order dated 19.10.2004 in CC.No.545/2003 on the file of the Judicial First Class Magistrate-I, Kochi, which is a case CRL.A.372/05 2 instituted upon the complaint preferred by the appellant herein for the offence under section 138 of the Negotiable Instrument Act. Accordingly, the learned Magistrate is directed to restore the above case on file on 3.11.2011, on which date the appellant/complainant is directed to appear before the trial court, and to proceed with the case in accordance with the procedure and law and dispose of the same on merit as expeditiously as possible. If there is any failure on the part of the appellant/complainant in appearing before the trial court as directed above, the learned Magistrate is free to dismiss the complaint. V.K.MOHANAN, JUDGE kvm/- CRL.A.372/05 3