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Global Hire Purchase and Credits v. State of Kerala and Another

Kerala HC5 Feb 2013CRL.A/1517/2009

Case brief

AI extract

What is this about?

The High Court disposed of a criminal appeal against an order of acquittal in a Section 138 N.I. Act case. The court set aside the acquittal and directed the complainant to deposit a sum to reinstate the complaint for trial on merits.

What did the court decide?

Acquittal order set aside; complainant directed to deposit Rs. 5,000 to reinstate complaint for trial on merits by 05.03.2013.

Global Hire Purchase and Credits Vs State of Kerala and… — 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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TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934

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CRL.A.No. 1517 of 2009 (D)

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Crl.L.P..594/2009 of

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HIGH COURT OF KERALA DATED 29/07/2009

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AGAINST THE ORDER/JUDGMENT IN ST.CASE No.1025/2007 of J.M.F.C-I., KOTTAYAM DATED 15-11-2008

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APPELLANT/PETITIONER/COMPLAINANT:

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GLOBAL HIRE PURCHASE AND CREDITS, KANNETHRA BUILDINGS, KANJIKUZHY, KOTTAYAM-4. REP. BY ITS MANAGING PARTNER K.R.ANILKUMAR.

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BY ADV. SRI.PHILIP T.VARGHESE

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RESPONDENTS/STATE AND ACCUSED:

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STATE OF KERALA,

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REPRESENTED BY THE PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.

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JASEELA.T.K. W/O. T.N.ABDUL SALI,

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ZEENA MANZIL, KADUVAKULAM, MOOLAVATTOM.P.O. KOTTAYAM.

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R2 BY PUBLIC PROSECUTOR - SRI.RAMPRASAD UNNI.T.

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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------------------------------------Crl.A.No.1517 of 2009

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Dated this the 05^th day of February, 2013

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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 it is aggrieved by the order dated 15/11/2008 in S.T. Case No.1025 of 2007 of the court of the Judicial Magistrate of the First Class-I, Kottayam 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. It appears from the case file that, though notice was sent to the second respondent in the above appeal, the same was returned unserved stating that whereabouts are not known. As this Court is inclined to dispose of this Appeal at the admission stage and considering the safe-guard proposed to incorporate in the judgment in favour of the respondent, I am of the view that notice to the respondent/accused can be dispensed with.

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Crl.A.No.1517/2009

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: 2 :

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The learned counsel for the appellant submitted

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that, though the case in the trial court was posted on 29/10/2008 for filing the affidavit, the accused approached the complainant for a settlement and therefore no affidavit was filed as directed by the court below. It is the further case of the counsel that, though the case was again posted on 15/11/2008 from 29/10/2008, the counsel for the complainant in the trial court mistakenly noted down the date of posting as 19/11/2008 instead of 15/11/2008 and therefore, when the case was taken on 15/11/2008, nobody was present. Consequently, the impugned order was passed. Hence the counsel submits that, there is no negligence on the part of the complainant or his counsel and therefore, one more opportunity may be given to the complainant to prosecute the matter on merit.

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I have carefully considered the submissions made by the counsel for the appellant.

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Though the counsel submitted several reasons justifying the absence of the complainant and the failure

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Crl.A.No.1517/2009

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: 3 :

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for not filing affidavit as directed by the court below, no evidence or material is produced before this Court. Counsel submitted that, since the cheque in question covers an amount of 3,25,000/-, one more opportunity may be given to the complainant to prosecute the matter on merit. However, it is 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 the dishonour of cheque for 3,25,000/-, there is no decision on merit. At the same time, it is equally important to note that there was lapse on the part of the complainant in cooperating with the trial of the case and complying with the direction of the trial court. Having regard to the facts and circumstances, according to me, it is only just and proper to grant one more opportunity to the complainant 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 15/11/2008 of the court of the Judicial Magistrate of the First Class-I, Kottayam in S.T.Case

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Crl.A.No.1517/2009

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: 4 :

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No.1025 of 2007 on condition that the

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appellant/complainant deposits a sum of 5,000/- (Rupees Five thousand only) in the trial court on or before **05/03/2013** . Accordingly, the appellant/complainant is directed to appear before the trial court on **05/03/2013** 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 5,000/(Rupees Five thousand 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 5,000/-, 3,500/- shall be given to the accused and the remaining `1,500/- 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

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Crl.A.No.1517/2009

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: 5 :

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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 2007.

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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

Global Hire Purchase and Credits v. State of Kerala and Another

Case brief

What is this about?

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Global Hire Purchase and Credits v. State of Kerala and Another

Case brief

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