Allowed

Santhosh Kumar v. Santhosh

Kerala HC11 Sept 2012CRL.A/1943/2005

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal filed by a complainant seeking trial on merits. The matter was disposed of by setting aside the acquittal order on the condition that the appellant deposits a fee and appears for restoration of the trial file.

What did the court decide?

The acquittal order dated 18/08/2005 was set aside. The appellant was directed to deposit Rs. 1,000/- and appear by 11/10/2012 for the trial to be restored and proceeded to a decision on merits.

Santhosh Kumar Vs Santhosh — 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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TUESDAY, THE 11TH DAY OF SEPTEMBER 2012/20TH BHADRA 1934

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CRL.A.No. 1943 of 2005 (F )

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CRLP.620/2005 DATED 07-11-2005 CC.1331/2003 of J.M.F.C.,PALA

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APPELLANT/COMPLAINANT.:

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SANTHOSH KUMAR, S/O.RAVEENDRAN, CHEMPANANICKAL, UZHAVOOR EAST P.O. UZHAVOOR.

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BY ADV. SRI.V.PHILIP MATHEWS

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RESPONDENTS/ACCUSED AND STATE.:

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SANTOSH, S/O.NARAYANAN, VARAKIL HOUSE, KARIMKUNNAM, IDUKKI DISTRICT.

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

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PUBLIC PROSECUTOR SMT.LALIZA.T.Y

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.Appeal No.1943 of 2005

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Dated this the 11^th day of September, 2012

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JUDGMENT

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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 as he is aggrieved by the order dated 18/08/2005 in C.C.No.1331 of 2003 of the court of the Judicial Magistrate of the First Class, Pala by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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Heard the learned counsel for the appellant. Though notice is served on the respondent, nobody has turned up and the appeal is not resisted.

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Counsel for the appellant submitted that the cheque in question covers an amount of `90,000/- and while the case was being prosecuted effectively, due to the mistake committed by the clerk attached to the counsel for the complainant in the trial court, neither the

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Crl.A.No.1943/2005

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complainant nor his counsel appeared before the court on 18/08/2005 and consequently the impugned order was issued by the learned Magistrate. According to the counsel, the posting date is mistakenly noted down as 28/08/2005 instead of 18/08/2005 and therefore there was no representation when the case was called on 18/08/2005. Thus the counsel submits that there was no negligence from the part of the complainant. The learned counsel further submitted that the impugned order was passed when the coercive step was pending against the accused. Therefore counsel submits that the order impugned is factually and legally not sustainable and one more opportunity may be given to the complainant to prosecute the matter on merit especially when the cheque in question covers and amount of `90,000/-.

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I have carefully considered the submissions made by the learned counsel for the appellant. As the impugned order is cryptic in nature this Court is not in a position to ascertain whether the learned Magistrate has applied his judicial mind in invoking Section 256(1) of

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Crl.A.No.1943/2005

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Cr.P.C. and whether the learned Magistrate is of the opinion that the appellant/complainant is regularly absent. From the submission of the learned counsel for the appellant it appears that, the accused has not entered appearance in spite of the usual proceedings, and hence the court below was constrained to issue N.B.W. against the accused on 04/02/2005 and the impugned order was passed when such a coercive step was pending. In the appeal proceedings also, from the endorsement of the file, it appears that notice could not be served on the respondent/accused in the usual way and therefore this Court finally ordered on 09/02/2007 to serve notice on the respondent through substitute service and thus the service of notice was effected on the respondent by way of paper publication. It is also relevant to note that, though the court has taken cognizance for the offence punishable under Section 138 of the N.I. Act on the basis of the complaint preferred by the appellant connected with dishonour of cheque for `90,000/-, there is no decision on merit. As the appellant is earnestly

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Crl.A.No.1943/2005

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prosecuting the matter, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter and to have a decision on merit. But such an opportunity can be given only on terms as there was failure on the part of the appellant in appearing before the court on 18/08/2005, the date on which the impugned order was passed and especially when no convincing explanation supported by materials is offered for such lapse.

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In the result, this appeal is disposed of setting aside the order dated 18/08/2005 of the court of the Judicial Magistrate of the First Class, Pala in C.C.No.1331 of 2003 on condition that the appellant/complainant deposits a sum of .1,000/- (Rupees One thousand only) in the trial court on or before 11/10/2012. Accordingly, the appellant/complainant is directed to appear before the trial court on **11/10/2012** 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 1,000/- (Rupees One thousand only) in

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Crl.A.No.1943/2005

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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. On receiving the cost as ordered above, the entire amount 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 proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2003.

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This Criminal Appeal is disposed of as above.

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V.K.MOHANAN, JUDGE

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skj

Santhosh Kumar v. Santhosh

Case brief

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What did the court decide?

Santhosh Kumar v. Santhosh

Case brief

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