IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1585 of 2010()
1. RENJI THOMAS, AGED 48 YEAR,
... Petitioner
Vs
1. ADV T.K.RAMCHANDRAN NAIR,
... Respondent
2. ANI VARGHESE, THUNDUPARAMBIL HOUSE,
3. STATE OF KERALA,
For Petitioner :SRI.VARUGHESE M EASO
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :21/05/2010
O R D E R
V.K.MOHANAN, J.
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Crl. R.P.No.1585 of 2010
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Dated this the 21st day of May, 2010.
O R D E R
Challenging the order dated 20.3.2010 in
Crl.M.P.No.5361/09 of the Chief Judicial Magistrate Court,
Pathanamthitta, the complainant therein preferred this revision
petition.
2. The above complaint is instituted by the accused for the
offence punishable u/s.420, 465, 467, 468 and 471 r/w S.34 of
Cr.P.C. According to the learned Chief Judicial Magistrate,
though the case was posted for recording the sworn statement
of the complainant and his witnesses and several opportunities
were given for the same, the complainant did not adduce his
evidence and not made available to record the sworn statement
of himself and his witnesses, thus according to the learned
Magistrate, there is no ground for further procedure. Hence the
learned Magistrate dismissed the complaint u/s.203 of Cr.P.C.
3. The learned counsel for the revision petitioner
submitted that, the observation made by the learned Magistrate
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in the impugned order is not fully correct. By producing
AnnexureII, the learned counsel submitted that though the
complainant was present on previous date, the court suo moto
adjourned the recording of the sworn statement. It is also
disclosed from AnnexureII that, the complainant was present on
21.12.2009 and on 30.1.2010. It is also relevant to note that,
the complainant was absent on 2.1.2010, on 16.1.2010 and on
20.3.2010, the date on which the impugned order passed.
AnnexureIII is the copy of the complaint in Crl.M.P.No.5361/09.
The learned counsel submitted that, the observation made by
the court below in paragraph (3) of the impugned order is not
fully correct. From the materials available on record it appears
that, the cheque in question covers for an amount of Rs.5 lakhs.
From AnnexureII it is also clear that, thought the complainant
was present, his sworn statement was not recorded probably
due to the inconvenience of the court. It is also relevant to note
that on 30.1.2010, the complainant was present and it was
adjourned to 27.2.2010 for the sworn statement of the
complainant. But on 27.2.2010 there was no sitting and hence
Crl. R.P.No.1585 of 2010
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the case was adjourned to 20.3.2010, on which date the
complainant was absent but he was represented and applied to
dispense with his presence. It was under the above
circumstances, according to the learned counsel, that the
learned Magistrate issued the impugned order.
4. As the case was filed on 21.12.2009, wherein serious
allegations are made against the accused, it was incumbent
upon the complainant to prosecute the matter vigilantly. But
there was some failure on the part of the complainant in
appearing before the court. But that itself is not a ground to
straight away dismiss the complaint u/s.203 of Cr.P.C., on the
ground that the complainant has not appear before the court to
record his statement. As pointed out earlier, on previous
occasions the complainant was present and not for his fault, his
sworn statement was not recorded and the case was adjourned.
As I am proposed to give an opportunity to the petitioner for
prosecuting the complaint, it is improper and absolutely
unwarranted to examine the merits or demerits of the finding or
observation made by the learned Magistrate in the impugned
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order. Therefore according to me, an opportunity can be given
to the complainant to prosecute the complaint on merit but
subject to terms.
In the result, this revision petition is disposed of setting
aside AnnexureI order and directing the learned Chief Judicial
Magistrate to restore the complaint on file provided, the
complainant depositing a sum of Rs.500/- in the CJM Court,
Pathanamthitta, for which the complainant is directed to appear
before the Court on 21.6.2010. On his appearance, and on
satisfaction that the complainant has deposited the amount as
directed above, the learned Magistrate is directed to restore the
complaint on file and to proceed with the same in accordance
with procedure and law and dispose of the same on merit.
V.K.MOHANAN,
Judge.
ami/