IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2353 of 2009()
1. MRS.SALY ZACHARIAHA, PROPRIETRESS,
... Petitioner
Vs
1. MR.VENUGOPAL, PROPRIETOR,
... Respondent
2. STATE OF KERALA REPRESENTED BY THE
For Petitioner :SRI.E.G.GORDEN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/07/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.2353 of 2009
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Dated this the 23rd day of July, 2009.
ORDER
Notice to respondent No.1 is dispensed with since the complaint is
dismissed under Section 204(4) of the Code of Criminal Procedure (for short,
“the Code”) and revision arises from that order. Heard counsel for petitioner and
the Public Prosecutor who takes notice for respondent No.2.
2. This revision is in challenge of order dated 27.8.2008 of learned
Additional Chief Judicial Magistrate, Ernakulam dismissing the complaint under
Section 204(4) of the Code and acquitting respondent No.1 under Section 256(1)
of that Code. Petitioner filed the complaint against respondent No.1 for offence
punishable under Section 138 of the Negotiable Instruments Act. On 27.8.2008
petitioner was absent, there was no representation, nor any application to excuse
absence. Steps were also not taken to issue process. Learned Additional
Chief Judicial Magistrate dismissed the complaint. Learned counsel submits that
on 16.4.2003 sworn statement of the petitioner was recorded and case was
taken on file. Thereafter either there was no sitting or the case was adjourned by
notification till 25.7.2008. That day there was no representation for the
petitioner. Case was then posted on 27.8.2008. That day also there was no
Crl.R.P.No.2353/2009
2
representation for the petitioner. Learned counsel submits that a mistake in
noting the posting date resulted in the absence of petitioner in the court below
on those days.
3. I have gone through the proceedings sheet in S.T.No.2308 of 2003
and find that the case was called in the court below only on 25.7.2008 and
27.8.2008 as aforesaid. I find no reason to think that petitioner failed to appear
in the court below and take necessary steps willfully.
4. Though learned Additional Chief Judicial Magistrate has observed
in the order under challenge that respondent No.1 is acquitted under Section 256
(1) of the Code, that provision cannot apply since respondent No.1 had not
appeared in the court. In effect it is a dismissal of the complaint under Section
204(4) of the Code.
Resultantly, this revision is allowed. Order under challenge is set aside
and the case is remitted to the court below for fresh disposal after giving the
petitioner an opportunity to take necessary steps. Petitioner shall appear in the
court below on 28.8.2009.
THOMAS P.JOSEPH,
Judge.
cks