S.VENUGOPAL v. STATE OF KERALA

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 M. AMEER, S/O MOIDU, MULANJOOR HOUSE, CHERPULASSERY (POST), PALAKKAD., PIN - 679503 BY ADVS. K B ARUNKUMAR POOJA K.S.(K/000244/2021) G SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON

04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1738 of 2023 2 K.BABU, J. ----------------------------------- Crl.A.No.1738 of 2023 ------------------------------------ Dated this the 4th day of January, 2024 JUDGMENT The challenge in this appeal is to the judgment dated

22.07.2023 in C.C No.1597/2017 passed by the Judicial First Class Magistrate Court-I, Thrissur. The complainant is the appellant.

2. The complainant filed a complaint alleging offence punishable under Section 138 of the Negotiable Instruments Act against respondent No.2 before the Judicial First Class Magistrate Court-I, Thrissur. In the complaint, the complainant alleged that respondent No.2, the accused, issued a cheque for Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand Only) from his account maintained with the HDFC Bank Ltd., Chandranagar Branch, Palakkad and the same was dishonoured unpaid when presented for collection due to insufficiency of funds. The complainant issued a registered notice demanding the amount covered by the cheque. Crl.A No.1738 of 2023 3 The accused failed to repay the amount. The appellant/complainant, thereafter, filed a complaint before the Chief Judicial Magistrate, Thrissur, which received the complaint on file and numbered as 1407/2012. The Chief Judicial Magistrate made over the complaint to the Judicial First Class Magistrate Court-III, Thrissur, from where based on a decision of the Supreme Court, the complaint was transferred to the Judicial First Class Magistrate Court, Ottapalam in Palakkad district where it was numbered as S.T No.270/2013. The complaint was again sent back to the Judicial First Class Magistrate Court-III, Thrissur and the same was later transferred to the Judicial First Class Magistrate Court-I, Thrissur, where the case was renumbered as C.C No.1597/2017.

3. On 22.07.2023, the Judicial First Class Magistrate Court-I, Thrissur acquitted the accused under Section 256(1) Cr.P.C on the ground that the complainant was absent and not represented.

4. Heard the learned counsel for the appellant, the learned counsel appearing for respondent No.2 and the learned Public Prosecutor.

5. The learned counsel for the appellant submitted that the Crl.A No.1738 of 2023 4 appellant/complainant had no information regarding the transfer of the case from the Judicial First Class Magistrate Court-III, Thrissur to Judicial First Class Magistrate Court-I. It is further submitted that it was only when his counsel at Thrissur informed him that he came to know that the complaint happened to be dismissed due to the non-appearance of the complainant.

6. The learned counsel for the party respondent submitted that the laches on the part of the complainant resulted in the acquittal of the accused.

7. The learned counsel for the appellant/complainant submitted that the name of the counsel who appeared at the Court in Ottapalam was shown in the list published before the Judicial First Class Magistrate Court-I, Thrissur and that was one of the reasons why the complainant could not be represented when the matter was taken up for hearing. In the impugned order, it is recorded that the complainant was represented through Advocates Ajeet Sreedharan and Vimaldev C.V. The learned counsel for the appellant submitted that Advocates Ajeet Sreedharan and Vimaldev C.V. were the lawyers engaged by the complainant at the Crl.A No.1738 of 2023 5 Ottapalam Court and he had engaged another lawyer by name Sri.T.S.Joshy who appeared for him when the case was transferred from the Court at Ottapalam to the Magistrate Court at Thrissur.

8. The complainant is a 60-year-old man. He filed the complaint on 03.10.2012 before the Chief Judicial Magistrate Court, Thrissur. The complaint was initially transferred to the Judicial First Class Magistrate Court-III, Thrissur from where it was transferred to the Judicial First Class Magistrate Court, Ottapalam. It remained on the files of the Judicial First Class Magistrate Court, Ottapalam for a period of four years. It was again sent back to the Magistrate Court at Thrissur in 2017. The presence of the accused could not be procured even after 10 years. The copy of the proceedings paper would reveal that even after repeated Non- bailable warrants, the accused failed to appear before the Court and it was only on 19.08.2022 the accused surrendered before the Court. The records do not reveal that the transfer of the case from the Judicial First Class Magistrate Court-III to the Judicial First Class Magistrate Court-I was duly communicated to the complainant. Crl.A No.1738 of 2023 6

9. Having regard to the fact that the appellant/complainant filed the complaint long back in 2012 and the presence of the accused could be procured only after 10 years, it cannot be concluded that there was laches on the part of the complainant. It is seen from the records that the appellant/complainant has been diligently prosecuting the complaint till the case remained on the file of the Judicial First Class Magistrate Court-III. The copy of the proceedings paper would further show that the complaint was taken up on 20.12.2017 and thereafter it was taken up only after a year on 20.12.2018 and thereafter on 21.12.2019. It is quite natural that the complainant was fed up with the lengthy proceedings that lasted for years.

10. Having considered the entire circumstances, this Court is of the view that the judgment acquitting the accused due to non- appearance of the complainant is liable to be set aside. In the result, the order dated 22.07.2023 acquitting the accused in C.C No.1597/2017 stands set aside. The complaint is restored to file. The Trial Court shall proceed with the trial of the matter and dispose of the same within a period of six months from the date of Crl.A No.1738 of 2023 7 production of a certified copy of this judgment. The parties are directed to appear before the Court below on 07.02.2024. The Criminal Appeal is allowed as above. Sd/- K.BABU, JUDGE KAS