Allowed

Najeeb Rawther v. Binu.T.S.& Another

Kerala HC4 Sept 2012CRL.A/1228/2009

Case brief

AI extract

What is this about?

The Kerala High Court set aside an acquittal order in a cheque dishonour appeal. Finding the appellant neglected his right to prosecute and present evidence in the lower court, the court granted one more opportunity contingent upon depositing a sum and appearing by a fixed date to resume trials.

What did the court decide?

Acquittal order set aside; appellant directed to deposit ₹2,500 and appear by 3.10.2012 for trial to resume; failure to comply will result in appeal dismissal.

Najeeb Rawther Vs Binu.T.S.& Another — Criminal Trial and Appeal | 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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TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934

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CRL.A.No. 1228 of 2009 ( )

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AGAINST THE ORDER IN CC.350/2002 of C.J.M.PATHANAMTHITTA, DTD.17.10.2003)

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APPELLANT(S)/COMPLAINANT::

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NAJEEB RAWTHER, MANAGING PARTNER, WESTERN AGENCIES, VENNIKULAM, THIRUVALLA.

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BY ADV. SRI.BECHU KURIAN THOMAS

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RESPONDENT(S)/ACCUSED & STATE::

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1. BINU T.S., THYPARAMBIL HOUSE, MADATHUMBHAGAM NORTH MURI, KALLUPARA VILLAGE MALLAPALLY TALUK.

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

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BY ADV.SMT.S.HYMA, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04-09-2012, 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.1228 of 2009

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Dated this the 4^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 under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 17.10.2003 in C.C.No.350 of 2002 of the court of Chief Judicial Magistrate-Pathanamthitta, 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 appellant was prosecuting the matter effectively. The plea of the accused was recorded on 29.8.2003 and thereafter the case was posted for evidence finally on 17.10.2003. But the clerk attached to the counsel for the appellant in the trial court mistakenly noted down the

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Crl.A.No.1228 of 2009

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posting date as 27.11.2003 and therefore when the case was called on 17.10.2003, neither the complainant nor his counsel was present. Consequently, the learned Magistrate issued the impugned order. Therefore, the counsel submits that there was no negligence on the part of the complainant in prosecuting the matter. It is the further submission of the learned counsel that, since the cheque in question covers an amount of `29,900/-, one more opportunity may be given to the appellant/complainant.

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Today the appeal has come up for admission. I am of the view that, notice to the respondents can be dispensed with, in the light of the manner in which I propose to dispose this appeal, particularly considering the fact that, once notice was ordered to the respondent in the delay petition filed alongwith the leave petition and though he received the notice on 22.7.2008, he has not chosen to appear before this Court.

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Though the counsel for the appellant submitted various facts in support of the absence of the appellant on

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Crl.A.No.1228 of 2009

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17.10.2003, no material is produced to substantiate those facts. However, it appears that though the court has already 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 cheque for `29,900/-, there is no decision on merit. From the facts stated in the appeal memorandum it appears that though there were ample opportunities for the appellant to appear before the court and to adduce evidence, he did not avail those opportunities. Therefore, there is negligence on the part of the appellant in prosecuting the matter effectively. Having regard to all the facts stated above, I am of the view that, by imposing appropriate terms, one more opportunity can be given to the appellant to prosecute the matter on merit.

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In the result, this appeal is disposed of setting aside the order dated 17.10.2003 in C.C.No.350 of 2002 of the court of Chief Judicial Magistrate-Pathanamthitta, on condition that the appellant/complainant deposits a sum of

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Crl.A.No.1228 of 2009

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2,500/- (Rupees Two 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 **3.10.2012** , 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 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 1,500/- shall be given to the accused and another sum of `1,000/- shall be deposited in the State Exchequer. As the case pertains to the year 2002, the learned

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Crl.A.No.1228 of 2009

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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

Najeeb Rawther v. Binu.T.S.& Another

Case brief

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Najeeb Rawther v. Binu.T.S.& Another

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