IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 11878 of 2007(L)
1. MOIDEEN SHAH, S/O. MARAKKAR SHAH,
... Petitioner
Vs
1. DR. JOSEPH MATHEW,
... Respondent
For Petitioner :SRI.JOSHI N.THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :25/05/2007
O R D E R
R. BASANT, J.
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W.P.C.No. 11878 of 2007 L
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Dated this the 25th day of May, 2007
JUDGMENT
Against the petitioner, a complaint has been filed on
10.10.2002 by the respondent herein alleging commission of the
offences punishable under Section 138 of the N.I. Act. It was filed
prior to 10.10.2002 and has been posted from 10.10.2002 to 2.3.2007.
On all dates upto 19.1.2006 the complainant was not present. But the
court went on adjourning the case. However, after receipt of notice
as ordered on 19.1.2006, the complainant has started appearing
before the learned Magistrate. The case is making further progress
before the J.F.C.M.-II, Ernakulam.
2. The petitioner has now come to this Court raising a
grievance against the Magistrate’s conduct of not dismissing the
complaint from 10.10.2002 to 19.1.2006 though the complainant was
never present. The complaint must have been dismissed under
Section 256 Cr.P.C. earlier, it is submitted. This is the short point
urged before me.
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3. The learned counsel for the respondent/complainant is also present
before court in connection with I.A. 4129 of 2007 in O.P. 8091 of 2003.
The learned counsel for the respondent submits that it is evident as day light
that the complainant was under the bonafide, but erroneous impression that
the case was pending before the Addl. C.J.M., Ernakulam and that is why he
did not appear before the J.F.C.M.-II, Ernakulam till he received notice as
ordered on 19.1.2006.
4. Section 256 Cr.P.C. is only an enabling provision and it is not the
law that in every case for the absence of the complainant the axe must fall
on the case and the complaint must be dismissed. Section 256 Cr.Pl.C. does
not take away the real, reasonable and effective discretion which a
Magistrate has when he considers whether a complaint must be dismissed
under Section 256 Cr.P.C. or not. In the facts and circumstances of this
case it is very evident that the learned Magistrate had only acted to advance
the interests of justice when he did not choose to close the case by invoking
the powers under Section 256 Cr.P.C. The complainant had come to this
court with O.P. 8091 of 2003 to complain that the present complaint,
which he thought had been filed before the Addl. C.J.M. Ernakulam, had
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not been taken on file. In these circumstances I am satisfied that the
petitioner is not entitled for any relief.
5. This Writ Petition is accordingly dismissed.
(R. BASANT)
Judge
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