Sml Finance Ltd vs Benny Joy on 8 October, 2018

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Kerala High Court

Sml Finance Ltd vs Benny Joy on 8 October, 2018

Bench: B.Sudheendra Kumar

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

  MONDAY ,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940

                  Crl.Rev.Pet.No. 1742 of 2016

 AGAINST THE ORDER/JUDGMENT IN CMP 392/2016 of J.M.F.C.-II,
                   ALUVA DATED 01-10-2016


REVISION PETITIONER/S:


              SML FINANCE LTD
              SML BUILDING, VENGALLOOR, MUVATTUPUZHA ROAD,
              THODUPUZHA, PIN-685608, REPRESENTED BY ITS
              POWER OF ATTORNEY HOLDER AND SENIOR FINANCE
              MANAGER MR.WILSON GEORGE, AGED 50 YEARS,
              S/O.E.V.GEORGE, RESIDING AT ILLIKKAL
              HOUSE,PALLIPORT P.O.

              BY ADV. SMT.K.B.REKHA

RESPONDENT/S:
      1     BENNY JOY
            PERUMAMKUNNEL, PAINGATTOOR, ERNAKULAM-686671.

      2       STATE OF KERALA
              REPRESENTED BY THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA.

              BY ADVS.
              SRI.DINESH THANKAPPAN
              SMT.R.REJI (ATTINGAL)


              R2 BY SRI. E C BINESH-PUBLIC PROSECUTOR


     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 08.10.2018, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
 Crl.Rev.Pet.No. 1742 of 2016



                               -2-



                          ORDER

The revision petitioner is the accused in CMP No.392/2016 on the files of the court below. The court below as per order dated 1.10.2016 dismissed the complaint as no step had been taken by the complainant as directed by the court below to issue process to the accused, against which this revision petition has been filed.

2. Heard.

3. In this case, it is relevant to extract the order of the court below, which is extracted hereunder:-

"1. This is a complaint filed against the accused alleging offence u/s.138 of the N.I.Act.

Crl.Rev.Pet.No. 1742 of 2016 -3-

2. Complainant is absent. No representation for the complainant for the last two chances. No steps are taken by the complainant since 29.04.2016.

3. Hence complaint is dismissed u/s.204 r/w. 256 Cr.P.C."

4. It is clear from the order impugned that the learned Magistrate is not aware of the provisions of Sections 204 and 256 Cr.P.C. Both the Sections operate on different spheres. Section 204(4) provides a situation where the court will be having the discretion to dismiss the complaint if the complainant does not take steps to issue process against the accused. Section 256(1) Cr.P.C. provides a situation where the court is having the discretion to acquit the accused if the complainant is not present Crl.Rev.Pet.No. 1742 of 2016 -4- before the court on a particular date. Therefore, it is clear that both the above said sections operate on different areas.

5. In the said circumstances, the court cannot dismiss the complaint "under Section 204 r/w Section 256 Cr.P.C." It is contented by the revision petitioner that the case was adjourned to 1.10.2016 from 20.08.2016. However, due to an over sight, the clerk of the learned Advocate for the revision petitioner mistakenly noted the posting date as 21.10.2016 instead of 01.10.2016 and in the said circumstances, the petitioner could not make representation before the court below on 1.10.2016 when the case was called. It has been submitted that Crl.Rev.Pet.No. 1742 of 2016 -5- the complainant had already taken steps for issuing process to the accused. However, the same could not be brought to the notice of the court below. Having gone through the contentions of the revision petitioner, in the light of the submission of the learned counsel for the revision petitioner, I am of the view that it is only just and proper to grant one more opportunity to the revision petitioner to contest the matter on merits. For the said reason, I am inclined to set aside the order impugned.

In the result, this revision petition stands allowed, setting aside order dated 1.10.2016 passed by the court below in CMP No.392/2016 dismissing the complaint under Crl.Rev.Pet.No. 1742 of 2016 -6- Section 204(4) Cr.P.C. and the court below is directed to proceed with CMP No.392/2016 in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the dismissal of the complaint on 01.10.2016. The revision petitioner shall report before the court below on 15.11.2018 without further notice.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE STK //TRUE COPY// //P.A. TO JUDGE// / /True co

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