IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 450 of 2008()
1. M/S. VAISHNAV SECURITIES,
... Petitioner
Vs
1. SURESHKUMAR, S/O. VELAYUDHAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.P.BALAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/06/2008
O R D E R
R. BASANT, J.
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Crl. Appeal No. 450 OF 2008
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Dated this the 6th day of June, 2008
JUDGMENT
Appellant is the complainant in a prosecution under Section
138 of the Negotiable Instruments Act. A complaint was filed and
cognizance was taken in the year 2006. The case stood posted
to 09.11.2007. On that day there were attempts to settle the
dispute. The case was posted to 01.12.07 to report settlement.
But on that day there was no representation for the complainant
and the complainant was absent. The learned Magistrate, in these
circumstances, proceeded to dismiss the complaint invoking
powers under Section 256 Cr.P.C.
2. The learned counsel for the appellant submits that the
appellant was not guilty of any contumacious laches. All through
he has been appearing before the Court and taking all necessary
steps to prosecute the complaint. But when the case was
adjourned on 09.11.07, the complainant and his counsel
understood that the case was posted to 04.12.07. They did not
know that the case was posted on 01.12.07. On 04.12.07 it was
revealed that the complaint had been already dismissed on
01.12.07. It is prayed that a lenient view may be taken and the
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appeal may be allowed with liberty to prosecute his complaint.
3. Respondents though served, there is no representation.
In the facts and circumstances of this case, I am satisfied that a
lenient view can be taken and the appeal can be allowed with
liberty to prosecute his complaint.
4. In the result, this appeal is allowed. The impugned order
is set aside. The learned Magistrate is directed to dispose of the
complaint afresh in accordance with law. The parties are directed
to appear before the learned Magistrate on 14.07.2008 to continue
the proceedings. Send back the records immediately to the court
below.
R. BASANT, JUDGE
ttb
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