The High Court set aside the acquittal order in a cheque bounce case where the complainant was absent. The court granted the appellant a fresh opportunity to prosecute the case on merits upon depositing a specified sum of money in the trial court.
Set aside acquittal; appellant directed to deposit Rs. 2,000/-; complaint restored for trial of record.
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
THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934
CRL.A.No. 1011 of 2009 ( )
AGAINST THE JUDGMENT IN ST.103/2004 of J.M.F.C.-I,THRISSUR, DTD.9.9.2004
APPELLANT(S)/COMPLAINANT:
P.VIJAYALEKSHMI, AGED 56, W/O.SOMASUNDHARAN, C/O.K.K.CHANDRAN, KOLLANKUZHI HOUSE, KOORKANCHERY VILLAGE, THRISSUR TALUK.
BY ADV. SRI.K.RAVI (PARIYARATH)
RESPONDENT(S)/ACCUSED AND STATE OF KERALA:
1. PUSHPALATHA, PROPRIETRIX, LOYALTY HOME
2. STATE OF KERALA, REP.BY THE
BY ADV.SMT.LALIZA T.Y., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.A.No.1011 of 2009
Dated this the 13th day of September, 2012.
J U D G M E N T
The complainant in a prosecution for the offence
punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since she is aggrieved by the judgment dated 9.9.2004 in S.T.No.103 of 2004 of the court of Judicial First Class Magistrate-I, Thrissur, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.
that, there was no negligence on the part of the appellant or her counsel in appearing before the trial court on the date of the impugned order. According to the appellant, she could not reach inside the court hall when the case was called up, though she reached the court in time, since the court hall was busy and crowded, and the counsel for the
2
Crl.A.No.1011 of 2009
complainant/appellant did not appear before the court. Hence, the counsel submits that one more opportunity may
be given to the appellant considering the fact that a total sum of `30,000/- include in the complaint.
made by the counsel for the appellant and I have also perused the judgment impugned in this appeal.
the case and the evidence and materials available on record, it can be seen that no material is produced in support of the submissions of the learned counsel for the appellant. Though the impugned order is dated 9.9.2004, copy application was filed only on 15.9.2004. Had the petitioner made application on 9.9.2004 itself, the submission of the counsel for the appellant can be considered as correct. However, as the impugned order is cryptic in nature, this Court is not in a position to ascertain whether the learned Magistrate has applied his mind or
3
Crl.A.No.1011 of 2009
whether the learned Magistrate is of the opinion that the complainant is regularly absent or earnest in prosecuting the matter. The fact remained is that, even though the court has taken cognizance for the offence punishable under section 138 of the NI Act, based upon the complaint preferred by the appellant connected with the dishonour of two cheques which covers a total sum of `30,000/-, there is no decision on merit. Therefore, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit but subject to terms as there was lapse on the part of the complainant/ appellant in appearing before the court below on the date of the impugned order.
In the result, this appeal is disposed of setting aside the order dated 9.9.2004 in S.T.No.103 of 2004 of the court of Judicial First Class Magistrate-I, Thrissur, on condition that the appellant/complainant deposits a sum of `2,000/- (Rupees Two Thousand only) within one month
4
Crl.A.No.1011 of 2009
from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 16.10.2012 , on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/ complainant depositing the amount 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 dispose of the same on merit. It is made clear that if there is any failure on the part of the appellant either in appearing before the court on the date fixed for her appearance and depositing the above amount within the time stipulated above, this order will stand vacated and consequently this appeal will also stand dismissed. In case the appellant/complainant complies with the above direction, and on the appearance of the accused, a sum of 1,500/- shall be given to the accused and another sum of 500/- shall be deposited in the State Exchequer. As the case pertains to the year 2004, the
5
Crl.A.No.1011 of 2009
learned Magistrate is directed to expedite 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
2 issues framed by the court
Whether the order acquitting the accused due to the complainant's absence should be set aside to grant a fresh opportunity to prosecute the case on merits.
Whether conditions such as a monetary deposit should be imposed to ensure the applicant's future appearance and compliance in the trial court.
2 provisions across 2 enactments
P.VIJAYALEKSHMI
PUSHPALATHA
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
