IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 870 of 2007()
1. KURUVILA JOHN, AKKUVILA HOUSE,
... Petitioner
Vs
1. SAHARUDIN, S/O.THAJUDEEN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.B.PREMOD
For Respondent :SRI.BIMAL K.NATH
The Hon'ble MR. Justice R.BASANT
Dated :24/07/2008
O R D E R
R.BASANT, J
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Crl.A.No.870 of 2007
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Dated this the 24th day of July 2008
J U D G M E N T
The appellant is a complainant in a prosecution under
Section 138 of the Negotiable Instruments Act. The complaint
was received on transfer from the court of the learned Chief
Judicial Magistrate, Kollam by the learned Judicial First Class
Magistrate Court-II, Mobile, Kottayam on 12/8/2005. Thereafter
the case underwent adjournments from time to time and on
19/9/2006 when the matter came up for hearing the complainant
was absent. There was no representation for the complainant.
The order sheet maintained by the learned Magistrate does not
show whether the accused was present or not on that date. The
learned Magistrate thereupon proceeded to pass the impugned
order dismissing the complaint for default under Section 256
Cr.P.C.
2. The learned counsel for the petitioner submits that
the absence of the petitioner was not wilful or deliberate. The
petitioner has been seriously prosecuting the complaint all
along. His absence on 19/9/2006 and the posting before that
Crl.A.No.870/07 2
date on 12/9/2006 was not wilful or deliberate. On 09/08/2006
the case was adjourned by notification. The petitioner had
understood the date of next posting to be 22/9/2006. On
22/9/2006 he came to know that the case was called on
12/9/2006 and 19/9/2006 and had been dismissed.
3. I am satisfied that notwithstanding the opposition of
the learned counsel for the respondent/accused a lenient view is
liable to be taken in the facts and circumstances of this case. I
do note that the appellant/complainant had diligently prosecuted
this case all alone till 09/08/2006.
4. In the result,
a) This appeal is allowed.
b) The impugned order is set aside.
c) Parties are directed to appear before the learned
Magistrate – complainant with a copy of this judgment on
25/8/2008. The learned Magistrate shall thereupon proceed to
dispose of the case as expeditiously as possible, at any rate,
within a period of three months from that date.
(R.BASANT, JUDGE)
jsr
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Crl.A.No.870/07 4
R.BASANT, J
C.R.M.C.No.
ORDER
DAY OF NOVEMBER 2006