ANIL KUMAR Vs. STATE OF KERALA
LAWS(KER)-2005-6-3
HIGH COURT OF KERALA
Decided on June 17,2005

ANIL KUMAR Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

A. K. Basheer, J. - (1.)The revision petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The complaint filed by him has been dismissed by the learned Magistrate under Section 203 of the Code of Criminal Procedure. The impugned order reads thus:
"Complainant is called absent. No representation. Complaint is dismissed under Section 203 Cr. P. C. "

(2.)The above complaint was filed on August 27, 2001. According to the learned counsel for the petitioner, the sworn statement of the complainant was not recorded by the court below. The case was in fact called in open court only on three occasions before it was ultimately dismissed on December 23, 2003. It was being adjourned from time to time by publishing notification on the notice board of the court without being called in open court. On a perusal of the lower court proceedings, the above submission appears to be correct. The following are the proceedings of the court below:
"28/8/2001: Complainant absent applied. Call on 24/11/01.

24/11/01: No sitting. Notified to 16/2/02.

16/2/02: No sitting. Notified to 29/4/02.

29/4/02: Complainant absent. No representation. Call on 27/1/03.

27/1/03: No sitting. Notified to 22/12/03.

22/12/03: Complainant is absent. Complainant to appear on 23/12/03.

23/12/03: Complainant is called absent. No representation. Complaint is dismissed under Section 203 Cr. P. C. "

It is baffling, if not mysterious, why this private complaint filed way back in the year 2001 was kept pending without even recording the sworn statement of the complainant. This is undoubtedly most disturbing. Further, the learned magistrate has dismissed the complaint under Section 203 of the Code, on the ground that the complainant was absent. Section 203 reads thus:

"203. Dismissal of complaint:- If, after considering the statement on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if, any) under Section 202 the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. "

The learned Magistrate has not recorded his reasons for dismissing the complaint, apart from stating that the complainant was absent. Obviously, the learned Magistrate had no occasion to consider the statement on oath of the complainant or any of his witnesses since none was examined. Similarly, he had no occasion to consider the result of the enquiry or investigation held under Section 202 either. In the peculiar facts and circumstances of this case I have no hesitation to hold that the learned Magistrate was not justified in dismissing the complaint for the absence of the complainant.

(3.)Therefore, the order of the learned Magistrate is set aside. The learned Magistrate shall restore the complaint back to file and dispose of the same in accordance with law, after affording sufficient opportunity to the complainant to prosecute his case. The petitioner shall appear before the court below on July 7, 2005.
Crl. R. P is disposed of in the above terms.

Appeal disposed of.



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