IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 CRL.A.No. 2464 of 2007() ------------------------ AGAINST THE JUDGEMENT/ORDER IN CRLP.1169/2007 Dated 14/11/2007 ST.90/2005 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... APPELLANT: COMPLAINANT ---------------------- MOHAMMED KUNJU T.H., S/O.HASSAN RAWTHER, THEKKEKARA HOUSE, KUTAPUZHA P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON RESPONDENTS: STATE & ACCUSED ---------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. 2. MANIYAMMAL, W/O.RADHAKRISHNANCHETTIAR, PUTHUPARAMBIL VAYALUMKAL, CHAMPAKKARA P.O., KARUKACHAL, KOTTAYAM DISTRICT. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ---------------------- Crl.A.No.2464 of 2007 ---------------------------------------- Dated this the 6th 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. Cognizance was taken in 2005. The accused had entered appearance. The case was posted to 20/9/2007. The complainant was absent and an application was filed. The application was allowed and the case was posted to 22/9/2007. On that day again, the complainant was absent and his counsel made an application. That application was dismissed by the learned Magistrate who proceeded to dismiss the complaint and acquit the accused under Section 256 Cr.P.C. The learned counsel for the appellant submits that the appellant is not guilty of any contumacious laches. He was seriously prosecuting the complaint. There is no reason why he should have shown any lethargy or want of interest in the prosecution. The cheque is for an amount of Rs.3,00,000/- and from 2005 to 2007 the petitioner had been prosecuting the complaint with due diligence. Only because the petitioner happened to be ill, application had to be made on Crl.M.C.No.2464/08 2 20/9/2007. The case was then posted to 22/9/2007 on which date the appellant continued to be ill and he could not appear. In these circumstances, a lenient view may be taken and the complainant may be given an opportunity to contest the proceedings and substantiate his case. 2. The respondent has been served. There is no representation for the respondent. Having considered all the relevant circumstances, I am of the opinion that there is merit in the contention that there is no contumacious laches on the part of the complainant. In the facts narrated above, I am satisfied that a lenient view can be taken and the appellant can be given a further opportunity to prosecute his complaint. 3. In the result, a) This Crl.A is allowed. b) The impugned order is set aside. 4. The learned Magistrate is directed to dispose of the complaint afresh in accordance with law. The petitioner shall appear before the learned Magistrate with a copy of this judgment to continue the proceedings. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.2464/08 3 Crl.M.C.No.2464/08 4 R.BASANT, J C.R.M.C.No. ORDER DAY OF NOVEMBER 2006