In an appeal against acquittal under Section 138 NI Act, the Court set aside the cryptic order and restored the complaint for trial on merit, conditioning the grant on deposit of security to expedite proceedings.
Quashed the acquittal order. Direct restoration of complaint for trial on merits upon deposit of Rs. 2,500 and appearance on fixed date.
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 10TH DAY OF SEPTEMBER 2012/19TH BHADRA 1934
CRL.A.No. 1185 of 2009 ( )
CC.308/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR.
APPELLANT/COMPLAINANT:
BRD SECURITIES LTD., 1ST FLOOR, T.K.M. COMPLEX, KOKKALAI, THRISSUR, REP. BY ITS DIRECTOR, THOMAS AUGUSTINE. P., S/O. AUGUSTINE, PUTHENPURACKAL HOUSE, VELUPADAM.P.O., THRISSUR.
BY ADV. SRI.K.N.PADMAKUMAR.
RESPONDENTS/ACCUSED AND STATE:
1. BAVITHA, D/O. JANARDHANAN, AMABADATH HOUSE, CHOOLISSERY. P.O,
KOLENGATTUKARA, THRISSUR.
2. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SMT.LALIZA T.Y.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
V.K.MOHANAN, J.
Crl.A.No.1185 of 2009
Dated this the 10th day of September, 2012
JUDGMENT
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 as it is aggrieved by the order dated 04/05/2009 in C.C.No.308 of 2009 of the court of the Judicial Magistrate of the First Class, Kodungallur by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.
Crl.A.No.1185/2009
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adjourned to 04/05/2009. It is the further case of the appellant that the counsel for the complainant is hailing from Thrissur and since the case was transferred to the Kodungallur court, the matter was entrusted with a lady Advocate who failed to appear in the trial court on 04/05/2009 as she was pregnant. Therefore the counsel submits that there is no negligence on the part of the complainant in appearing before the court below and the counsel further seeks one more opportunity to prosecute the matter on merit.
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acquitting the accused under Section 256(1) of Cr.P.C. The cheque in question covers an amount of `25,530/which is the subject matter of the complaint upon which the court has taken cognizance. But there is no decision on merit. Therefore, according to me, even if there is lapse on the part of the complainant, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit. Either from the impugned order or from the appeal memorandum it is not clear as to whether the accused has entered appearance. Therefore, while granting further opportunity to the complainant, according to me, appropriate terms can be imposed.
In the result, this appeal is disposed of setting aside the order dated 04/05/2009 of the court of the Judicial Magistrate of the First Class, Kodungallur in C.C.No.308 of 2009 on condition that the appellant/complainant deposits a sum of `2,500/- (Rupees Two thousand five hundred only) in the trial court on or before 10/10/2012.
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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 .2,500/(Rupees Two thousand five hundred only) 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 2,500/-, .1,500/- shall be given to the accused and the remaining .1,000/- 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
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case, the learned Magistrate is directed to expedite the proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2009.
This Criminal Appeal is disposed of as above.
V.K.MOHANAN, JUDGE
skj
2 issues framed by the court
Whether the acquittal order was passed on merits or due to procedural lapse.
Whether the appellant-complainant deserves a fresh opportunity to prosecute the proviso to Section 138 NI Act.
2 provisions across 2 enactments
BRD SECURITIES LTD.
BAVITHA
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
