High Court Kerala High Court

Moideen Shah vs Dr. Joseph Mathew on 25 May, 2007

Kerala High Court
Moideen Shah vs Dr. Joseph Mathew on 25 May, 2007
       

  

  

 
 
  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.

W.P.C.No. 11878 of 200

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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

W.P.C.No. 11878 of 200

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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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