Appellant in cheque dishonour case appealed impaired acquittal under Sec 256(1) CrPC. Single opportunity for retrial allowed subject to deposit of Rs.1,500 within one month from the complainant's account.
Impugned order quashed. Appellant to pay Rs.1,500 in one month for restoration of complaint on 12.1.2012.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 12TH DECEMBER 2011 / 21ST AGRAHAYANA 1933 CRL.A.No. 27 of 2011() ---------------------AGAINST THE JUDGEMENT/ORDER IN CRLP.1177/2010 Dated 08/12/2010 ST.153/2009 of JUDL. MAGISTRATE OF FIRST CLASS - III, KOLLAM
.................... APPELLANT(S): COMPLAINANT: ------------------------------------------------
P.V.MAHADEVAN, PRAGATHI, JAWAHAR NAGAR- 160, PATTATHANAM, KOLLAM.
BY ADV. SRI.THYPARAMBIL THOMAS THOMAS
RESPONDENT(S): ACCUSED & STATE:
---------------------------------------------------------
1. JESSY NINA PANICKER, W/O.NINAN PANICKER, KUNNUVILA PUTHEN VEEDU, KAKKOLIL, KUNDARA, KOLLAM.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADVS. SRI.P.GOPAKUMARAN NAIR, SRI.C.S.DIAS, SRI.N.K.SUBRAMANIAN. R2 BY PUBLIC PROSECUTOR SMT. LALIZA.T.Y.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
V.K.MOHANAN, J.
Crl.A.No.27 of 2011
Dated this the 12th day of December, 2011.
J U D G M E N T
The complainant in a prosecution for an offence under
Section 138 of the Negotiable Instruments Act is the appellant, as he is aggrieved by the order dated 29.10.2010 in S.T.No.153 of 2009, of the court of Judicial First Class Magistrate-III, Kollam, by which the learned Magistrate acquitted the accused, in his complaint, under Section 256 (1) of Cr.P.C.
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for the appellant submitted that, as the cheque in question covers an amount of Rs.3 lakhs, one more opportunity may be given to the complainant to prosecute the matter on merit.
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the part of the complainant to prosecute the matter earnestly, one more opportunity can be given in favour of the appellant to have a decision on merit. According to me, such an opportunity can be given only on terms.
In the result, this appeal is allowed setting aside the order dated 29.10.2010 in S.T.No.153 of 2009, of the court of Judicial First Class Magistrate-III, Kollam, on condition that the appellant/complainant depositing a sum of Rs.1,500/- (Rupees one thousand and five hundred only), within one month from today in the trial court. Accordingly, the appellant is directed to appear before the trial court on 12.1.2012 , on which date the learned Magistrate is directed to restore the complaint on file and on the satisfaction of the learned Magistrate that the appellant/complainant deposits the amount as directed above, proceed with the case in accordance with the procedure and law and dispose it on merit. On the appearance of the accused, a sum of Rs.1,000/- (Rupees one thousand only) shall be paid to him, out of the amount
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which would be deposited by the appellant and the remaining amount of Rs.500/- shall be deposited in the State Exchequer. The accused is also directed to appear before the trial court either in person or through his counsel on 12.1.2012.
V.K.MOHANAN, Judge
ami/
3 issues framed by the court
Whether the Magistrate was entitled to acquit the accused under Section 256(1) Cr.P.C. despite taking cognizance when no hearing on merits occurred due to appellant's absence.
Whether the appellant/complainant deserves another chance to have the matter decided on merit despite laches in prosecuting.
What conditions should be imposed to allow the retrial of the cheques case after withdrawal of acquittal.
2 provisions across 2 enactments
P.V.Mahadevan
Jessy Nina Panicker
State of Kerala
V.K.Mohan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
