Remanded

K.Ramesh v. State

Kerala HC20 Feb 2013CRL.A/166/2013

Case brief

AI extract

What is this about?

This appeal challenges an order under Section 256(1) Cr.P.C. acquitting the accused due to the appellant's failure to appear. The court set aside the acquittal, imposed a deposit of Rs. 2,500 as a condition, and remanded the case for trial, allowing the appellant to prosecute if conditions are met; otherwise, the appeal will be dismissed.

What did the court decide?

Appeal disposed of by setting aside impugned order; appellant directed to deposit Rs. 2,500 within one month and appear by 20.3.2013 for restoration and trial on merit.

K.Ramesh Vs State — 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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WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934

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CRL.A.No. 166 of 2013 ( )

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ST.943/2008 of J.M.F.C.-III,PALAKKAD, DATED 8.4.2099

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APPELLANT(S)/COMPLAINANT:

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K.RAMESH, S/O.KANDANKUTTY, MALAMPUZHA ROAD, OLAVAKKODE, PALAKKAD.

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BY ADV. SRI.VINOD KUMAR.C

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RESPONDENT(S)/ACCUSED & STATE :

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1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2. P.T.RAVI, S/O.THANKAPPAN, DEVIKRIPA,

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ALANGOTTIL, OLAVAKKODE, PALAKKAD.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2013, 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.166 of 2013

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Dated this the 20^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 8.4.2009 in S.T.No.943 of 2008 of the court of Judicial First

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Class Magistrate-III, Palakkad, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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Heard the counsel for the appellant and I have perused the judgment impugned in this appeal.

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Learned counsel for the appellant submitted that the cheque in question covers an amount of `4,31,650/- and it is the further submission of the counsel that, the accused has not entered appearance so far and

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Crl.A.No.166 of 2013

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therefore steps under section 82 and 83 of Cr.P.C. were pending against the accused and the impugned order was passed on 8.4.2009, as the complainant failed to appear before the court below, since he was laid up. It is the further submission of the counsel for the appellant that the inability of the complainant in appearing before the court below on 8.4.2009 was already informed to his counsel and though the complainant requested his counsel to make arrangement to represent the complainant and to seek an adjournment, the complainant's counsel was engaged in some other court and though the said counsel made arrangement to represent him, the counsel with whom arrangement was made had failed to make appropriate submission before the court below and consequently the learned Magistrate issued the impugned order. Hence, the counsel submits that there was no wilful laches or negligence on the part of the complainant in appearing before the court below on the date of the impugned order.

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Crl.A.No.166 of 2013

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Therefore, the counsel submits that 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 has submitted several facts in support of his challenge against the impugned order, to substantiate those challenges no material or evidence are produced. The appellant has also failed to produce the B'diary proceedings of the court below to show that steps under sections 82 and 83 are pending against the accused as claimed by the appellant in the appeal memorandum. From the impugned order it appears that the case pertains to the year 2008. As the order impugned itself is in a printed form, this Court is not in a position to ascertain whether the learned Magistrate has applied his mind while invoking section 256(1) of Cr.P.C. From the cause title of the order it is not clear as to whether the accused had

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Crl.A.No.166 of 2013

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entered appearance or whether he was represented by any counsel or not. As no reason is stated in the impugned order justifying to invoke section 256(1) of Cr.P.C., I am inclined to interfere with the order impugned in this appeal. But it is pertinent to note that from the facts stated by the counsel for the appellant and the facts stated in the appeal memorandum, it is crystal clear that on the date of the impugned order, neither the complainant nor his counsel was present and no application was filed to excuse the absence of the complainant on any ground. However, it is relevant to note that though the court has 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, which covers an amount of `4,31,650/-, there is no decision on merit. Having regard to the facts and circumstances involved in the case, according to me, even though there was lapse on the part of the appellant/ complainant in appearing before the court

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Crl.A.No.166 of 2013

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below on the date of the impugned order, by imposing appropriate terms in favour of the accused, 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 8.4.2009 in S.T.No.943 of 2008 of the court of Judicial First Class Magistrate-III, Palakkad, 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 20.3.2013 , 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 with the procedure and law and dispose of the same on merit. It is made clear that if there is any failure on the

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Crl.A.No.166 of 2013

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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, the sum of `2,500/- shall be deposited in the State Exchequer. As the case pertains to the year 2008, 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

K.Ramesh v. State

Case brief

What is this about?

What did the court decide?

K.Ramesh v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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