IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2019 of 2009()
1. SURESH BABU
... Petitioner
Vs
1. GEORGE MATHEW & OTHERS
... Respondent
For Petitioner :SRI.SHAJI P.CHALY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/07/2009
O R D E R
THOMAS P.JOSEPH, J.
= = = = = = = = = = = = = = = = = = = = = = = =
CRL. R.P. NO. 2019 of 2009
= = = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 1st day of July, 2009
O R D E R
————–
Notice to respondent Nos.1 and 2 is dispensed with since the
order under challenge is one under Section 204(4) of the Code of
Criminal Procedure (for short, “the Code”). Heard counsel for
petitioner and Public Prosecutor who took notice for respondent No.3.
2. Petitioner preferred a private complaint in the court of
learned Additional Chief Judicial Magistrate, Ernakulam against
respondent Nos.1 and 2 alleging offence punishable under Section 138
of the Negotiable Instruments Act. It would appear that initially on
steps taken by petitioner, respondent No.1 appeared in the court
below through counsel but thereafter he did not turn up. Learned
Additional Chief Judicial Magistrate ordered process to respondent
No.1 and posted the case on 10.2.2009. On that day petitioner was
absent. Learned counsel for petitioner submitted that petitioner was
represented by counsel on that day. Since steps were not taken to
issue notice to respondent No.1 compliant was dismissed under
Section 204(4) of the Code. Learned Additional Chief Judicial
Magistrate also ordered that respondent No.1 is acquitted under
Sec.256(1) of the Code. That order is under challenge in this revision.
CRL. R.P. No.2019 of 2009
-: 2 :-
3. No doubt, an order of acquittal under Sec.256(1) of the
Code is not subject to a revision since the Code provides for an appeal
against acquittal in a case arising on a private complaint though with
the special leave of the court under Sec.378(4) of the Code and hence
by virtue of Sec.401(4) of the Code no revision would lie at the
instance of the party who could have appealed. But for invoking
Sec.378(4) of the Code there must be an acquittal of the accused as
contemplated under the Code. Section 256(1) of the Code certainly
contemplates acquittal of the accused for absence of complainant. In
this case learned counsel submitted that though petitioner was absent
in the court on 10.2.2009, counsel represented him. That amounted to
appearance of petitioner since otherwise presene of petitioner in court
was not required for any purpose. Hence there was no scope for
acquittal stated to be under Sec.256(1) of the Code. At any rate,
acquittal of respondent No.1 in this case under Sec.256(1) of the Code
is consequent to the dismissal of the complaint, obviously under
Sec.204(4) of the Code for failure of the petitioner to take steps. In
such a situation, it cannot be said that remedy of the petitioner is by
way of appeal under Sec.378(4) of the Code. Dismissal of the
complaint under Sec.204(4) of the Code is not appealable and hence
this Court is competent to exercise its revisional power in respect of
the impugned order.
CRL. R.P. No.2019 of 2009
-: 3 :-
4. I shall refer to the question whether dismissal of the
complaint under Sec.256(1) of the Code is justified. Learned counsel
submitted that petitioner had taken steps on 10.2.2009 and it is
without considering that, complaint was dismissed on that day itself.
There is no reason to think that without exhausting the process if any
already produced, learned Additional Chief Judicial Magistrate
directed petitioner to take necessary steps. At the same time I do
not find wilful laches or negligence on the part of petitioner. Hence I
am inclined to give an opportunity to the petitioner to take necessary
steps.
Resultantly, this revision is allowed. The impugned order
dismissing the complaint under Sec.204(4) of the Code is set aside.
The case is remitted to the court below for disposal in accordance with
law after giving petitioner an opportunity to take necessary steps.
Petitioner shall appear in the court of learned Additional Chief Judicial
Magistrate, Ernakulam on 3.8.2009.
THOMAS P.JOSEPH, JUDGE.
vsv