IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.L.P..No. 413 of 2008() ------------------------------------- (S.T.NO.122/2007 OF JUDICIAL FIRST CLASS MAGISTRATE'S COURT II (MOBILE), KOTTAYAM) ........ PETITIONER/COMPLAINANT: ------------------------------------------ P.V.GEORGE, PADINATHETTU HOUSE, PADINJATTUMCHERI MURI, KAVIYOOR, THIRUVALLA. BY ADV. SMT.ELIZABETH MATHAI IDICULLA RESPONDENTS: ACCUSED & STATE: ------------------------------------------------------- 1. G.HARISHKUMAR, HARIPRIYA, MULIKULANGARA, MAVELIKKARA P.O. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U.NAZAR THIS CRIMINAL LEAVE PETITION HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J ------------------------------------ Crl.L.P. No.413 of 2008 ------------------------------------- Dated this the 26th day of September, 2008 ORDER Petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. Cognizance was taken. The complainant did not appear to tender evidence. At long last the learned Magistrate invoked the jurisdiction under Section 256 Cr.P.C to dismiss the complaint. 2. The petitioner claims to be aggrieved by the dismissal. He has come to this Court seeking leave. 3. Plea of the accused was recorded on 08.05.07 and the case stood posted for evidence to 04.08.07. Subsequently there were 9 postings and I extract the orders on those 9 posting dates from 04.08.07 to 21.11.07 as is revealed from the copy of the order sheet produced. “04.08.07 - No sitting notified on 01.09.07. 01.09.07 - Complainant absent today also produce complainant to 24.09.07. 24.09.07 - Complainant absent today also produce complainant for evidence to 25.09.07. 25.09.07 - Complainant absent. Produce complainant for evidence. No further time to 03.10.07. Crl.L.P. No.413 of 2008 2 03.10.07 - Both sides not ready. Produce complainant to 29.10.07. 29.10.07. - Complainant absent. Produce complainant for evidence to 24.11.07. 24.11.07 - Complainant absent today also. Produce complainant for evidence to 26.11.07. 26.11.07 - Complainant absent today also produce complainant for evidence. No further time to 27.11.07. 27.11.07 - Complainant absent today also. Several chances given. Accused is acquitted u/s 256(i) Cr.P.C vide separate judgment. 4. It is submitted that the petitioner is an old person. He was sick also. That is why he could not appear on all these posting dates. It is prayed that a lenient view may be taken and a further opportunity may be granted. 5. I am unable to agree. The sequence of events clearly shows that the learned Magistrate has shown maximum indulgence and leniency to enable the petitioner to prosecute his complaint. It was not a case of the horse not being taken to water, but it is definitely a case of the horse refusing to take water. I am not persuaded to agree that there is any justification in granting leave under Section 378(4) Cr.P.C to the complainant in the facts and circumstances of the case. Crl.L.P. No.413 of 2008 3 6. The application for leave is, in these circumstances, dismissed and leave is rejected. (R.BASANT, JUDGE) rtr/-