Disposed

B.Prasanna v. Satheesan Y.

Kerala HC27 Sept 2012CRL.A/1174/2012

Case brief

AI extract

What is this about?

The High Court disposed of a criminal appeal against an acquittal under Section 138 NI Act. Finding no finding on merit but noting lapses by the complainant, the Court set aside the acquittal order on condition that the complainant deposits a specified sum and appears by a fixed date to resume trial.

What did the court decide?

Set aside the impugned acquittal order; appellant directed to deposit Rs. 1,500 within one month and appear on 29.10.2012 for restoration of complaint and trial.

B.Prasanna Vs Satheesan Y. — 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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THURSDAY, THE 27TH DAY OF SEPTEMBER 2012/5TH ASWINA 1934

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CRL.A.No. 1174 of 2012 ()

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AGAINST THE ORDER IN CC.132/2009 of J.M.F.C.-III, KOTTARAKAKARA

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APPELLANT(S)/COMPLAINANT:

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B.PRASANNA, AGED 43 YEARS D/O.BHAVANI, ANANDA BHAVAN PAVITHRESWARAM (P.O) PUTHOOR(VIA) PAVITHRESWARAM VILLAGE, KOTTARAKARA TALUK KOLLAM DISTRICT.

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BY ADV. SRI.K.V.ANIL KUMAR

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RESPONDENT(S)/ACCUSED AND STATE:

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1. SATHEESAN Y.

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THANNIVILA VEEDU,PAVITHRESWARAM CHERUPOIKA (P.O.) PAVITHRESWARAM VILLAGE KOTTARAKARA TALUK, KOLLAM DISTRICT.691507.

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2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 682031.

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BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.1174 of 2012

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Dated this the 27^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

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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 22.3.2011 in C.C.No.132 of 2009 of the court of Judicial First Class Magistrate-III, Kottarakara, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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Learned counsel for the appellant submitted that the complainant was prosecuting the matter in the trial court effectively and she had filed proof affidavit on 19.1.2011, which returned to the accused and directed to be present on 24.2.2011. It is the further submission of the learned counsel that on 24.2.2011 and on 22.3.2011, ie.,the

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Crl.A.No.1174 of 2012

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date on which the impugned order was passed, the complainant could not present in the court in person but she was represented. It is the further submission of the counsel that as the cheque in question covers an amount of `30,000/-, one more opportunity may be given to the complainant.

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I have carefully considered the submissions made by the counsel for the appellant and I have also perused the judgment impugned in this appeal.

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It is relevant to note that the B'diary proceedings of the court below is not produced. In the impugned order, the learned Magistrate has stated that though several opportunities were given, the complainant was continuously absent. Though the counsel submitted that the complainant was represented on 22.3.2011, there is no such endorsement in the impugned order and no document or material is produced to substantiate the above claim of the appellant. But at the same time it is relevant to note that though the court has taken cognizance for the offence punishable under section 138 of the NI Act, based

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Crl.A.No.1174 of 2012

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upon the complaint preferred by the appellant connected with the dishonour of cheque which covers an amount of `30,000/-, there is no finding on merit. Having regard to the facts and circumstances involved in the case, I am of the view that, though there is lapse on the part of the complainant in appearing before the court below, one more opportunity can be given to her to prosecute the matter on merit but subject to terms.

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In the result, this appeal is disposed of setting aside the order dated 22.3.2011 in C.C.No.132 of 2009 of the court of Judicial First Class Magistrate-III, Kottarakara, on condition that the appellant/complainant deposits a sum of `1,500/- (Rupees One Thousand Five Hundred only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 29.10.2012 , 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

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Crl.A.No.1174 of 2012

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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 his 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 1,000/- 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 2009, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible.

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The Criminal Appeal is disposed of as above.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

B.Prasanna v. Satheesan Y.

Case brief

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What did the court decide?

B.Prasanna v. Satheesan Y.

Case brief

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