Criminal Appeal No. 2716 of 2009 · Kerala High Court
Case at a glance
Outcome
Disposed of
In the result, this appeal is disposed of setting aside
Provisions considered
- Negotiable Instruments Act, 1881 s. 138
- Code of Criminal Procedure, 1973 s. 256(1)
Key paragraphs
- Para 55. Though counsel for the appellant submitted that the absence of the complainant and his counsel was due to the mistake committed by the clerk of the counsel in the trial court, no material or evidence is produced to substantiate the above claim. From the…
Judgment
BY ADV. SRI.R.GIREESH VARMA RESPONDENTS(S)/STATE AND ACCUSED: --------------------------------
STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
SREEJA, D/O. SREEDHARAN, 12/57, BUNDIL VEEDU, KUNNUKUZHY P.O. THEKKUMMOODU, THIRUVANANTHAPURAM. R2 BY ADV. SRI.S.PRASANTH R1 BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05-11- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 2716 of 2009 ---------------------------------------- Dated this the 5th day of November, 2012 J U D G M E N T The complainant in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the order dated
31.8.2009 in C.C.No.725 of 2008 of the court of Chief Judicial Magistrate, Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.
2. Heard the counsel for the appellant as well as counsel for the respondents. I have perused the judgment of the trial court impugned in this appeal.
Learned counsel for the appellant submitted that when the matter is pending in the trial court, it was posted in the Adalath on
11.7.2009 and as no settlement was arrived, the case was again posted in the trial court on 13.8.2009. According to the counsel, the posting date is mistakenly noted as 13.9.2009 by the clerk attached to the Crl.A.No.2716 of 2009 :-2-: counsel for the complainant in the trial court and therefore, neither the complainant nor his counsel appeared before the trial court either on 13.8.2009 or 31.8.2009. Thus, the counsel submitted that there was no negligence on the part of the complainant or his counsel. Therefore, it was submitted that one more opportunity may be given to the complainant to prosecute the matter on merit. Counsel for the respondents submitted that the complainant was negligent in appearing before the court below and no ground is made out to interfere with the order of acquittal.
I have carefully considered the averments made by the counsel for the appellant as well as the respondent.
Operative part
Though counsel for the appellant submitted that the absence of the complainant and his counsel was due to the mistake committed by the clerk of the counsel in the trial court, no material or evidence is produced to substantiate the above claim. From the impugned order, it appears to me that the complainant was regularly absent. But, it is relevant to note that though the court has already Crl.A.No.2716 of 2009 :-3-: taken cognizance for the offence punishable under Section 138 of the N.I.Act connected with the dishonour of cheque which covers an amount of `1 lakh, there is no decision on merit. Under the above circumstances, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit, but subject to terms. In the result, this appeal is disposed of setting aside the order dated 31.8.2009 in C.C.No.725 of 2008 of the court of the Chief Judicial Magistrate, Thiruvananthapuram on condition that the appellant/complainant deposits a sum of `3000/- (Rupees Three Thousand only) on or before 04.12.2012 in the trial court.
Accordingly, the appellant and the second respondent are directed to appear before the trial court on 04.12.2012 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of `3000/- as directed above, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and Crl.A.No.2716 of 2009 :-4-: dispose of the same on merit. On appearance of the accused, a sum of `2000/-, out of the above amount, shall be given to the accused and the remaining amount of `1000/- shall be deposited in the State Exchequer. It is made clear that if there is any failure on the part of the appellant either in depositing the amount mentioned above within the time or in appearing before the court below on the date fixed for his appearance, this order will stand vacated and consequently, the above appeal will stand dismissed.
In case the appellant/complainant complies with the above direction and co-operates with the inquiry and trial of the case, the learned Magistrate is directed to expedite the proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2008. The Criminal Appeal is disposed of as above. MBS/ V.K.MOHANAN, Judge Crl.A.No.2716 of 2009 :-5-: V.K.MOHANAN, J. CRL.A.No. 434 OF 2003 Crl.A.No.2716 of 2009 :-6-: JUDGMENT Dated:11.11.2011
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 aside
Which statutory provisions did this judgment involve?
Negotiable Instruments Act, 1881 — s. 138; Code of Criminal Procedure, 1973 — s. 256(1).
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.