IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 CRL.A.No. 896 of 2007() ----------------------- AGAINST THE JUDGEMENT/ORDER IN CRLP.31/2007 Dated 17/01/2007 ST.485/2005 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... APPELLANT(S): COMPLAINANT ------------------------- S.JAGADEESAN, S.M.Q.P.125/4, VAYU VIHAR(AIRFORCE STATION), PULAYANARKOTTA, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR RESPONDENT(S): ACCUSED/STATE ---------------------------- 1. M.MOHAN, KARIPANAIKAL HOUSE, MISSION QUARTERS, TRISSUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 896 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2008 JUDGMENT The appellant is the complainant in a prosecution under Section 138 of the N.I. Act. The cheques are for an amount of Rs.25,000/- each. Cognizance was taken and the case was registered on 18.5.2005. Thereafter the case had undergone seven adjournments and was posted to 28.10.2006. On all dates other than 28.1.2006 the complainant was present or was represented by counsel. On 9.8.06 the case was posted to 28.10.06 with directions to the parties to appear. When the case came up on 28.10.2006, neither the complainant nor the accused were present. The accused was represented but the appellant was not represented. The learned Magistrate in these circumstances invoked the jurisdiction under Section 256 Cr.P.C., dismissed the complaint and acquitted the accused. 2. The appellant claims to be aggrieved by the impugned order. According to the appellant/complainant there was no Crl.A.No. 896 of 2008 2 wilful default whatsoever in appearing on 28.10.2006. When the case was adjourned on 1.8.2006 a wrong date was noted and consequently the appellant happened to be absent on 28.10.2006. A lenient view must have been taken. The complainant was all along prosecuting his complaint with due diligence. The unfortunate non-appearance on 28.10.06 consequent to a bonafide error should not have entail the rejection of the complaint and acquittal of the accused. Subject to any appropriate conditions the appellant may be granted an opportunity to prosecute his complaint. The impugned order may be set aside, it is prayed. 3. Notice was issued to the respondent/accused. He has been served. There is no appearance for the respondent. A certified copy of the order sheet maintained by the learned Magistrate from 18.5.2005, the date on which cognizance was taken and process was issued against the accused till 28.10.2006, the date on which the impugned order was passed, has been placed before me. I have perused the same. 4. Having considered all the relevant circumstances I find merit in the prayer of the learned counsel for the appellant. I am satisfied Crl.A.No. 896 of 2008 3 that a lenient view deserves to be taken and the complainant, who has been diligently prosecuting his complaint on all dates of posting and happened to be absent on the last date of posting on account of reasons which were allegedly beyond his control, deserves to be granted a further opportunity to prosecute his complaint. 5. This Criminal Appeal is accordingly allowed. The impugned order is set aside. The learned Magistrate is directed to dispose of S.T.485 of 2005 afresh in accordance with law. The parties shall appear before the learned Addl. Chief Judicial Magistrate on 24.11.2008 to continue the proceedings. (R. BASANT) Judge tm