IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 3365 OF 2008() ------------------------------ CC.2306/2007 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/COMPLAINANT: -------------------------------- CHERUKARATH ALPHONSA @ SOPHIA ALPHONSA, AGED 59 YEARS, D/O.GEORGE (LATE) CHERUKARATH HOUSE, KUMBALANGI P.O. KOCHI-7, ERNAKULAM DISTRICT. BY ADV. SRI.P.K.IBRAHIM SRI.D.B.BINU SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR RESPONDENTS/ACCUSED & STATE: ---------------------- 1. SHERLY XAVIER, AGED 33 YEARS, W/O. XAVIER K.R. KURISHINGAL HOUSE, KUMBALANGI SOUTH P.O., KOCHI-7 ERNAKULAM DISTRICT 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 3365/2008 OR DER ON CRL.M.APP. 10286 OF 2008 IN CRRP 3365 OF 2008 DISMISSED 15.10.2008 SD/- M. SASIDHARAN NAMBIAR, JUDGE. Okb/- /TRUE COPY/ P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3365 OF 2008 ------------------------------------------ Dated this the 15th day of October, 2008 O R D E R Petitioner is the complainant in C.C. 2306 of 2007 on the file of Judicial First Class Magistrate-II, Kochi. Complaint was filed alleging that first respondent committed an offence under section 138 of Negotiable Instruments Act. Learned Magistrate on 19.8.2008 dismissed the complaint under section 204(4) of Code of Criminal Procedure stating that petitioner did not take steps and he was absent when the case was called and he was not represented and therefore it is only a waste of time. The revision is filed challenging the order. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel submitted that there were two cases against the same accused filed by the petitioner alleging the offence under section 138 of N.I.Act and C.C. 2305 of 2007 was also posted along with C.C.2306 of 2007 and petitioner had taken steps in both the cases and the accused was present in Court on 26.4.2008, but C.C. 2305 of 2007 alone was called on that day and when the matter was brought to the notice of the CRRP3365/08 2 Bench Clerk it was disclosed that the case will be called on the next posting day on which C.C.2305 of 2007 is posted and without knowledge of the petitioner the case was called on 19.8.2008 and as petitioner and his counsel were not aware of the posting it happened to be dismissed and in such circumstances, in the interest of justice, the compliant is to be restored. 4. On the submission of the learned counsel and on the facts stated by him, an opportunity is to be granted to the petitioner. Therefore the order dated 19.8.2008 dismissing the complaint under section 204(4)of Cr.P.C. is set aside. C.C.2306 of 2007 is restored to the file. Judicial First Class Magistrate-II, Kochi is directed to proceed with complaint in accordance with law. Petitioner is directed to take steps within two weeks from today. If no steps taken as directed, learned Magistrate is directed to proceed under section 204(4) of Code of Criminal Procedure. Revision petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-