Criminal Appeal No. 205 of 2009 · Kerala High Court
Case at a glance
Outcome
Disposed of
In the result, this appeal is disposed of setting asidethe order 27
Provisions considered
- NegotiableInstruments Act, 1881 s. 138
- Code of Criminal Procedure, 1973 s. 256(1)
- Negotiable Instruments Act, 1881 s. 138
Key paragraphs
- Para 44. I have carefully considered the submissions of thelearned counsel for the appellant and I have perused theimpugned order. On a perusal of the impugned order itappears that, though the accused was present, thecomplainant was absent and he has not filed the proofaffidavit and also…
Judgment
V.K.MOHANAN, J.----------------------------------------Crl.A.No.205 of 2009----------------------------------------Dated this the 2nd day of March, 2012.J U D G M E N TThe complainant in a prosecution for the offencepunishable under Section 138 of the NegotiableInstruments Act, 1881 (for short 'the N.I.Act') is theappellant since it is aggrieved by the judgment dated27.11.2008 in C.C.No.84 of 2008 of the court of JudicialFirst Class Magistrate-III, Kottarakkara, by which thelearned Magistrate acquitted the accused under Section256(1) of the Cr.P.C.
Heard the counsel for the appellant. I haveperused the judgment of the trial court impugned in thisappeal.
The counsel for the appellant submits that thecheque in question covers an amount of `.1 lakh and thoughcognizance was taken, there is no decision on merit. It isthe further submission of the learned counsel that the case 2Crl.A. No.205 of 2009was originally filed in the court of Judicial First ClassMagistrate-II, Kottarakkara, wherein cognizance was takenand instituted C.C.No.1041 of 2007 and subsequently thecase is transferred to the present trial court and the case isrenumbered as C.C.No.84 of 2008. According to thelearned counsel, the appellant has regularly appearedbefore the court, though he was absent on two or threepostings. It is the further submission of the learned counselthat, on the date of the impugned order, the complainantcould not appear as he was laid up and consequently anapplication was filed to excuse his absence but the learnedMagistrate rejected such petition. The learned counselhanded over to me a copy of the petition dated 27.11.2008,which contained the court seal and initial of the learnedMagistrate. Thus, according to the counsel, the appellantwas prosecuting the matter effectively and on the date ofthe impugned order, he could not appear as he was laid up. Thus, it is the submission of the learned counsel that onemore opportunity may be given to the 3Crl.A. No.205 of 2009complainant/appellant to prosecute the matter on merit.
I have carefully considered the submissions of thelearned counsel for the appellant and I have perused theimpugned order. On a perusal of the impugned order itappears that, though the accused was present, thecomplainant was absent and he has not filed the proofaffidavit and also not produced the original of the cheque. Thus, it is discernible from the impugned order that due tothe non co-operation of the complainant, the trial could notproceed with the trial, though the complaint is dated10.9.2007. It was under the above circumstances, thelearned Magistrate issued the impugned order. Therefore, Icannot find any fault with the order of the learnedMagistrate. However, it is beyond dispute that the courthas taken cognizance for the offence punishable undersection 138 of NI Act based upon the complaint preferredby the appellant connected with the dishonour of thecheque for an amount of Rs.1 lakh but there is no decisionon merit.
Operative part
Therefore, according to me, one more 4Crl.A. No.205 of 2009opportunity can be given to the complainant to prosecutethe matter and to have a decision on merit. Considering thelaches on the part of the appellant/complainant such anopportunity can be given only on terms. In the result, this appeal is disposed of setting asidethe order 27.11.2008 in C.C.No.84 of 2008 of the court of Judicial First Class Magistrate-III, Kottarakkara, oncondition that the appellant/complainant deposits a sum of`.2,500/- (Rupees Two Thousand Five Hundred only) withinone month from today, in the trial court. Accordingly, theappellant is directed to appear before the trial court on2.4.2012, on which date the learned Magistrate is directedto restore the complaint on file and on his satisfaction thatthe appellant/complainant depositing the amount asdirected above, the learned Magistrate is further directedto proceed with the trial of the case in accordance with theprocedure and law and dispose of the same on merit.
It ismade clear that if there is any failure on the part of theappellant either in appearing before the court on the date 5Crl.A. No.205 of 2009fixed for his appearance and depositing the above amountwithin the time stipulated above, this order will standvacated and consequently this appeal will also standdismissed. In case the appellant/complainant complies withthe above direction, and on the appearance of the accused,a sum of `.1,500/-, out of the above amount, shall be givento the accused and the remaining amount of `.1,000/- shallbe deposited in the State Exchequer. As the case pertainsto the year 2008, the learned Magistrate is directed toexpedite the trial of the case as expeditiously as possible. The Criminal Appeal is disposed of as above. Sd/- V.K.MOHANAN, JUDGE.ami/-//True copy//P.A.to Judge
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: In the result, this appeal is disposed of setting asidethe order 27
Which statutory provisions did this judgment involve?
NegotiableInstruments Act, 1881 — s. 138; Code of Criminal Procedure, 1973 — s. 256(1); Negotiable Instruments Act, 1881 — s. 138.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.