Kerala High Court
M/S.Gem Agencies (Kerala) vs Anaez on 18 January, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938
Crl.Rev.Pet.No. 2037 of 2005
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ST 29/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOCHI
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REVISION PETITIONER/COMPLAINANT::
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M/S.GEM AGENCIES (KERALA)
CHITTOOR ROAD, Y.M.C.A. JUNCTION, ERNAKULAM,,
REPRESENTED BY K.F. VARGHESE, MANAGING PARTNER.
BY ADVS.SRI.K.SHRIHARI RAO
SRI.B.R.MURALEEDHARAN
RESPONDENT(S):
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1. ANAEZ,
PROPRIETOR,ZEENA ELECTRICALS,
PANDALAM, PATHANAMTHITTA DISTRICT.
2. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 18-01-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.V.
ALEXANDER THOMAS, J.
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Crl.R.P.No. 2037 of 2005
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Dated this the 18th day of January, 2017
O R D E R
The revision is directed against the impugned order passed as early as on 7.3.2005, whereby the private complaint filed by the petitioner was dismissed under Sec.204(4) of the Cr.P.C. The impugned order reads as follows:
"O R D E R This is a private complaint instituted alleging that the accused committed offence punishable u/s.138 of N.I. Act.
2. After filing the complaint, cognizance of the offence u/s 138 of N.I. Act was taken. Processes issued for procuring the presence of the accused. In spite of the repeated steps, accused did not appear before Court. The complainantfor before Court or to take necessary steps wasissuing directed to appear Non Bailable Warrant and 82 and 83 Cr.P.C. steps against the accused. The complainant did not take any steps in spite of the repeated directions. The complainant was regularly absent and the case cannot be proceeded with. Presence of the complainant is absolutely necessary to proceed with the case. Hence the complaint is dismissed u/s 204(4) Cr.P.C."
2. The instant revision petition was filed on 27.7.2005 and it came up for admission on 5.9.2005. On 7.9.2005, the petitioner's counsel wanted time to produce a copy of the diary/proceedings paper of the court below and it was accordingly adjourned to Crl.R.P.2037/05 - : 2 :-
5.10.2005. Later, on 7.12.2005 also the petitioner was not able to produce copy of the diary/proceedings paper of the court below as promised by him earlier and accordingly, this Court ordered that the case be posted when moved again, presumably at the request of the petitioner's counsel. Later the matter was listed on 10.2.2006, on which day there there was no representation for the petitioner and this Court again directed that the case be posted when moved again. Thereafter, the petitioner has not taken any steps whatsoever to move this petition before the Court and the Registry has posted the matter for admission.
3. When the matter came up for admission on 10.1.2017, the learned counsel for the revision petitioner submitted that he has not been furnished any instructions by the revision petitioner after September, 2005 and he wants a short time to get instructions from the petitioner and also for time to send registered notice to him, etc. Accordingly, this case was adjourned to 18.1.2017. Today also there is no representation from the side of the petitioner.
4. On a reading of the impugned order, it is seen that after taking of the cognizance of the case for the offence under Sec.138 of the Negotiable Instruments Act, after filing the complaint, Crl.R.P.2037/05 - : 3 :-
summons was issued by the court below for procuring the presence of the accused. But in spite of the repeated steps, the accused had not appeared before the court below. Thereupon, the complainant was directed to appear before the court after taking necessary steps for issuing non-bailable warrant and Secs.82 and 83 Cr.P.C. proceedings against the accused. But the complainant had not taken any steps in spite of repeated directions and the complainant was regularly absent. In view of this scenario, the court below found that the case cannot be proceeded with, as the presence of the complainant is absolutely necessary to proceed with the case. Accordingly, the Judicial First Class Magistrate's Court-III, Kochi, as per the impugned order, dismissed the complaint under Sec. 204(4) of the Cr.P.C. On going through the reasonings given by the learned Magistrate in the impugned order, this Court is not in a position to hold that the said order is illegal or improper. Accordingly, this Crl.R.P. stands dismissed.
sdk+ ALEXANDERSd/-
THOMAS, JUDGE
///True Copy///
P.S. to Judge
Crl.R.P.2037/05 - : 4 :-