Disposed

A.Vijayakumar v. S. Aravindakshan Nair & Anr.

Kerala HC7 Feb 2013CRL.A/1320/2009

Case brief

AI extract

What is this about?

The Kerala High Court set aside an acquittal order in a cheque bounce case. Despite a delay in the complainant appearing due to illness without informing the Magistrate, the Court directed the appellant to deposit Rs. 2,500 as a condition to restore the case to the trial court for a fresh hearing.

What did the court decide?

Acquittal order set aside; appeal disposed of on condition that appellant deposits Rs. 2,500 within one month for restoration of the case in the lower court.

A.Vijayakumar Vs S. Aravindakshan Nair & Anr. — Cheque Dishonour | Kerala HC (2013)

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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 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934

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CRL.A.No. 1320 of 2009 ( )

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CC.683/2003 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES), DATED 12-10-2004

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APPELLANT(S)/COMPLAINANT::

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A.VIJAYAKUMAR, SIVAKRIPA, T.C.30/140/1, NALUMUKKU, PETTAH THIRUVANANTHAPURAM.

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BY ADV. SRI.D.SAJEEV

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RESPONDENT(S)/ACCUSED & STATE::

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1. S.ARAVAINDAKSHAN NAIR, ASWATHY, TTC ROAD, JAWAHAR NAGAR, TRIVANDRUM.

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2. STATE OF KERALA, REP.BY THE

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADV. SRI.R.T.PRADEEP

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SRI.V.VIJULAL BY PUBLIC PROSECUTOR ADV.SRI.RAMPRASAD UNNI T.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2013, 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.1320 of 2009

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Dated this the 7^th day of February, 2013.

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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 he is aggrieved by the judgment dated 12.10.2004 in C.C.No.683 of 2003 of the court of Judicial First Class Magistrate-V, (Special Court for Mark List Cases), Vanchiyoor, Thiruvananthapuram, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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Heard learned counsel for the appellant and Adv.Sri.R.T.Pradeep learned counsel for R1. I have also perused the order impugned in this appeal.

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Counsel for the appellant strenuously submitted that the cheque in question covers an amount of `50,000/-

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Crl.A.No.1320 of 2009

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and the complainant was prosecuting the matter effectively. On the date of the impugned order, ie., on 12.10.2004, the complainant could not appear before the court as he was laid up due to Hyper tension and throat infection. But he was adequately represented by his counsel, who moved an application for exemption. But the learned Magistrate, rejecting the said application, proceeded to acquit the accused under section 256(1) of Cr.P.C. Thus according to the counsel, there was no wilful laches or negligence on the part of the complainant in prosecuting the matter and therefore one more opportunity may be given to the appellant/complainant to prosecute the matter on merit.

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I have carefully considered the submissions made by the counsel for the appellant. From the order impugned it appears that the learned Magistrate has granted four postings on four dates for the evidence of the complainant and also directed the complainant to present for evidence and in the light of the impugned order, it can be seen that though the case was posted as last chance for evidence, the

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Crl.A.No.1320 of 2009

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complainant did not appear. It is on the above factual and procedural background, the learned Magistrate issued the impugned order. But it is relevant to note that, as submitted by the counsel for the appellant, towards the prosecution of the case, the complainant has already filed proof affidavit on 21.8.2004, on which date there was no sitting for the court. It is thereafter the case was posted on 18.9.2004 and from that date, the case was adjourned to 12.10.2004. On 12.10.2004, according to the counsel, the complainant could not appear due to his illness. Suffice to say that, the complainant or his counsel has failed to apprise the learned Magistrate about the inability of the complainant to appear before the court on the date of the impugned order, on medical ground. No material is produced before this Court also to show that the complainant was absent due to health reason. However, it is relevant to note that though the court has taken cognizance for the offence punishable under section 138 of the NI Act for an amount of `50,000/-, there is no decision

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Crl.A.No.1320 of 2009

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on merit. Considering all the facts and circumstances, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit but only on terms, as there was some laches on the part of the complainant in appearing before the court and to co-operate with the trial of the case.

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In the result, this appeal is disposed of setting aside the order dated 12.10.2004 in C.C.No.683 of 2003 of the court of Judicial First Class Magistrate-V, (Special Court for Mark List Cases), Vanchiyoor, Thiruvananthapuram, on condition that the appellant/complainant deposits a sum of `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 07.03.2013 , 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.1320 of 2009

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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, out of 2,500/-, which would be deposited, a sum of 1,500/- shall be given to the accused and a sum of `1,000/- shall be remitted to the State Exchequer. As the case pertains to the year 2004, 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

A.Vijayakumar v. S. Aravindakshan Nair & Anr.

Case brief

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A.Vijayakumar v. S. Aravindakshan Nair & Anr.

Case brief

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