Allowed

Sun Enterprises v. Shamseed Thundiyil

Kerala HC10 Sept 2012CRL.A/1045/2012

Case brief

AI extract

What is this about?

The Court allowed the criminal appeal against the acquittal of an accused in a Section 138 cheque dispute. Noting the lack of a merit-based decision due to procedural defects, the Court set aside the order and remanded the case for trial on condition that the appellant deposits Rs. 2000/- and appears before the trial court.

What did the court decide?

The order dated 28.4.2011 in C.C. No. 411 of 2010 was set aside. The appellant was directed to deposit Rs. 2,000/- and appear before the trial court on 10.10.2012 for the restoration and expeditious t

Sun Enterprises Vs Shamseed Thundiyil — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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MONDAY, THE 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934

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CRL.A.No. 1045 of 2012

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---------------------[AGAINST THE ORDER DTD.28.4.2012 IN CC.NO.411/2010 (CMP 2620/2010) of THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA]

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APPELLANT(S)/COMPLAINANT:

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SUN ENTERPRISES, KAROOR.P.O,PALA REPRESENTED BY ITS MANAGING PARTNER RENJAN.K.KARAKKATTIL S/O.KURIAN,RESIDING AT KARAKKATTIL HOUSE KATTAPPANA.P.O,KATTAPPANA.

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BY ADV. SRI.V.T.RAGHUNATH

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RESPONDENTS(S)/ACCUSED AND STATE:

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SHAMSEED THUNDIYIL,

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KARTHEDATH,CHENNAMANGALLUR,MUKKOM.P.O KOZHIKODE,PIN-673602.

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STATE OF KERALA,

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REPRESENTED BY THE PUBLIC PROSECUTOR

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HIGH COURT OF KERALA.

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R2 BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y.

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10-09-

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2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No. 1045 of 2012 - A

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Dated this the 10^th day of September, 2012

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J U D G M E N T

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The complainant in a prosecution for the offence punishable

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under Section 138 of the Negotiable Instruments Act, 1881 (for short

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'the N.I.Act') is the appellant as it is aggrieved by the order dated 28.4.2012 in C.C.No. 411 of 2010 (CMP No.2620/2010) of the court of the Judicial First Class Magistrate, Kattappana by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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Heard the counsel for the appellant. I have perused the

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judgment of the trial court impugned in this appeal.

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Counsel for the appellant submitted that on the date on which the impugned order was passed, the case was not posted for the evidence of the complainant and though the complainant was represented, the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. which according to the learned counsel,

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Crl.A.No.1045 of 2012

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is illegal and improper. In support of the above submission, the

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learned counsel pointed out that as per the proceedings dated 5.3.2012, the case was posted for further hearing and for further proceedings against the accused and therefore, the presence of the complainant was not necessary. Therefore, the counsel submitted that one more opportunity may be given to the complainant to prosecute the matter on merit, especially when the cheque in question covers an amount of `2,78,720/-.

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I have carefully considered the submission of the learned counsel for the appellant and perused the judgment of the trial court.

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Though the certified copy of the proceedings of the court

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is not produced before this Court, handing over a copy of the same, the counsel submitted that neither the complainant nor its counsel was aware of the proceedings for which the learned Magistrate ordered on 5.3.2012 and posted on 28.4.2012. From the impugned order, it appears that though the complainant was absent, it is represented by

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Crl.A.No.1045 of 2012

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its counsel since the learned Magistrate has recorded that he had heard the matter. Therefore, presumably the presence of the complainant was not required. However, the order passed by the learned Magistrate is in favour of the accused acquitting him under Section 256(1) of the Cr.P.C. That itself shows that there is no decision on merit, even thought the court has taken cognizance upon the complaint preferred by the appellant connected with the dishonour of cheque for `2,78,720/-. Considering the all the facts and circumstances involved in the case, I am of the view that it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, but at the same time, according to me, such an opportunity can be given only on terms.

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In the result, this appeal is disposed of setting aside the order dated 28.4.2012 in C.C.No. 411 of 2010 (CMP No.2620/2010) of the court of the Judicial First Class Magistrate, Kattappana on condition that the appellant/ complainant deposits a sum of ` 2000/- (Rupees

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Crl.A.No.1045 of 2012

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Two Thousand only) in the trial court on or before 10.10.2012. Accordingly, the appellant/complainant is directed to appear before the trial court on 10.10.2012 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 2000/- in the court below as directed above, he 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. Out of the sum of 2000/-, 1000/- shall be given to the accused and the remaining 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

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Crl.A.No.1045 of 2012

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proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2010.

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This Criminal Appeal is disposed of as above.

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V.K.MOHANAN,Judge.

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MBS/

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Crl.A.No.1045 of 2012

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V.K.MOHANAN, J .

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CRL.A.No. 434 OF 2003

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JUDGMENT

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Dated:11.11.2011

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Crl.A.No.1045 of 2012

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Sun Enterprises v. Shamseed Thundiyil

Case brief

What is this about?

What did the court decide?

Sun Enterprises v. Shamseed Thundiyil

Case brief

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What did the court decide?

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