Remanded

George Varghese v. State of Kerala

Kerala HC14 Feb 2013CRL.A/174/2013

Case brief

AI extract

What is this about?

The High Court of Kerala allowed criminal appeals against acquittal orders in cheque dishonour cases. It set aside the acquittals as procedurally illegal due to the complainant's absence from cross-examination and the trial's conduct in the absence of non-appearing accused without case splitting. The matter was remanded for fresh disposal subject to a security deposit by the complainants.

What did the court decide?

Impugned order acquitting accused set aside; cases remanded to trial court for fresh disposal; complainants directed to deposit security within one month and appear by 14/03/2013.

George Varghese Vs State of Kerala — 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 14TH DAY OF FEBRUARY 2013/25TH MAGHA 1934

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CRL.A.No. 174 of 2013 (B)

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Crl.L.P..83/2013 of HIGH COURT OF KERALA DATED 05-02-2013

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AGAINST THE ORDER/JUDGMENT IN CC.126/2008 of J.M.F.C.-I, KOLLAM DATED 09-11-2012

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APPELLANT/COMPLAINANT :

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GEORGE VARGHESE, AGED 55 YEARS, S/O. LATE DR. T.E.GEORGE, RESIDING AT AMBALAVELIL, THRIKKANNAMANGAL, KOTTARAKKARA.

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BY ADVS.SRI.RAJA VIJAYARAGHAVAN

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SRI.M.T.SURESH KUMAR

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RESPONDENTS/STATE :

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M/S. VISHNU CHITTY FUNDS, A PARTNERSHIP FIRM, SARANS, MANGADU P.O. MANGADU, KOLLAM-691 015.

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REPRESENTED BY MANAGING PARTNER C.B.UDAYAKUMAR.

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C.B.UDAYAKUMAR, MANAGING PARTNER, M/S. VISHNU CHITTY FUNDS, SARANS, MANGADU P.O., MANGADU, KOLLAM-691 015.

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T.A.REKHA,

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W/O. C.B.UDAYAKUMAR, PARTNER, M/S. VISHNU CHITTY FUNDS, SARANS, MANGADU P.O., KOLLAM-691 015.

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STATE OF KERALA ,

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REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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R4 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-02-2013, ALONG WITH CRL.A.Nos.178 & 180/2013 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.Nos.174, 178 & 180 of 2013

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Dated this the 14^th day of February, 2013

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JUDGMENT

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The appellant in Crl.A.No.178 of 2013, who is the complainant, in C.C.No.127 of 2008 of the trial court, is the wife of the complainant in C.C.Nos.126 of 2008 and 32 of 2008 who are the appellants in Crl.A.No.174 of 2013 and 180 of 2013. In all the above appeals the respondents are one and the same. As all the parties in the above appeals are the same and question of law and facts involved are identical, these appeals are heard together and being disposed of by this common judgment.

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The appellants in the above appeals are the complainants in three different prosecutions for the offence punishable under Section 138 of the N.I. Act against the respondents herein who are the accused therein. The cheque in question which covers Crl.A.No.180 of 2013, is for an amount of 3,50,000/- and in Crl.A.No.178 of 2013, for an amount of 63,000/- and in Crl.A.No.174 of 2013 the cheque amount is

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Crl.A.Nos.174, 178 & 180/2013

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: 2 :

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`1,68,000/-. The judgment impugned in these appeals are issued under Section 255(1) of Cr.P.C. acquitting the accused who are three in numbers on the ground that the complainant failed to adduce any evidence to prove the allegation against the accused. It is the above orders that are under challenge in these appeals.

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I have heard Sri.Raja Vijayaraghavan, learned counsel appearing for the appellants in all the above appeals. As I am proposed to dispose of these appeals at this admission stage itself and particularly when I am proposed to incorporate safe-guard to protect the interest of the respondents/accused, I am of the view that notice to the respondents can be dispensed with.

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The learned counsel for the appellants submitted that in all these cases except in C.C.No.126 of 2008, the complainant has filed proof affidavit in lieu of chief-examination and the documents from the side of the complainant have already been marked. The impugned order was passed when the cases were posted for the evidence of the complainant. It is also the submission of

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Crl.A.Nos.174, 178 & 180/2013

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: 3 :

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the learned counsel for the appellants that, though in each case there are three accused, accused Nos.1 and 2 have not entered appearance so far, only A3 has appeared before the court below in pursuance to the process issued. It is also the submission of the counsel that, on the date of the impugned orders A3 was also absent. It is the further submission of the counsel that the complainant in all these cases could not appear before the court below on the date of the impugned orders as they were laid up and to excuse their absence, applications were filed through the counsel for the complainant in the trial court and the complainants were adequately represented by their counsel. But rejecting the applications filed on behalf of the complainants, the court below proceeded to acquit the accused under Section 255(1) of Cr.P.C. It is also submitted by the learned counsel for the appellants that the court below did not split up the case against A1 and A2 who are absconding and in the absence of such a proceeding, it is procedurally illegal and irregular for the court below to

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Crl.A.Nos.174, 178 & 180/2013

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: 4 :

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proceed with the trial of the case and recording evidence behind their back. Thus, according to the counsel, the above approach of the court below is arbitrary and illegal and considering the huge amounts involved, the counsel submitted that one more opportunity may be given to the appellants/complainants to adduce evidence and to prosecute the matter accordingly.

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I have carefully considered the submissions made by the counsel for the appellants and I have perused the impugned orders.

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On a perusal of the order impugned in these appeals it can be seen that the learned Magistrate acquitted the accused under Section 255 (1) of Cr.P.C. on the ground that the complainant failed to adduce any evidence to prove the guilt of the accused. But at the very same it is relevant to note that in the very same order the learned Magistrate has observed that the complainants were absent and application was rejected, though the case is posted for evidence since April, 2002. In all the impugned orders it can be seen that altogether

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Crl.A.Nos.174, 178 & 180/2013

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: 5 :

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there are three accused in each case but only A3 alone entered appearance. So it is crystal clear that the trial of the cases cannot be proceeded with and the evidence of the complainant cannot be recorded in the absence of accused Nos.1 and 2, particularly when the case against them are not split up and instituted separately. Therefore, the proceedings adopted by the court below cannot be approved. However, it is relevant to note that, though the court took cognizance based upon the complaint preferred by the appellants connected with dishonour of cheque, which covers substantial amount, there are no decision on merit, especially when the evidence on the complaint is not complete. As indicated earlier, though the proof affidavit has already been filed by the complainant and the documents were marked, the complainants are not cross-examined due to the lapse on the part of the complainant in appearing before the court below for subjecting to cross-examination. In the above circumstances, according to me, it is only just and proper to remand each of the matter to the trial court for fresh

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Crl.A.Nos.174, 178 & 180/2013

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: 6 :

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disposal, after giving effective opportunity to the complainant as well as the accused to adduce evidence. But such opportunities to the appellants can be given only on terms as there was lapse on the part of the complainant in appearing before the trial court and making available themselves for cross-examination.

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In the result, the order dated 09/11/2012 in C.C.No.126 of 2008, C.C.No.127 of 2008 and C.C.No.32 of 2008 against which respectively Crl.A.Nos.174 of 2013, 178 of 2013 and 180 of 2013 filed are set aside and the matter remanded back to the trial court for fresh disposal, provided the appellants/complainants in each case deposit a sum of `2,500/- in the trial court within one month from today and the appellants/ complainants in each case are directed to appear before the trial court on 14/03/2013, on which date the court below is directed to post the Calendar cases and on the satisfaction of the trial court that the appellants/ complainants deposit the above amount in each case, proceed with the trial of the cases in accordance with procedure and law, particularly

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Crl.A.Nos.174, 178 & 180/2013

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: 7 :

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from the stage at which the impugned orders are passed and dispose the cases on merit. On deposit of the above amount, a sum of 1,500/- shall be paid to the 3<sup>rd</sup> accused, who has already entered appearance and the remaining amount of 1,000/- shall be remitted to the State Exchequer. It is made clear that if there is any failure on the part of the appellants either in depositing the amount mentioned above within the time stipulated or in appearing before the court below on the date fixed for their appearance, this order will stand vacated and consequently, the above appeal will stand dismissed. In case the appellants/complainants comply 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 cases as expeditiously as possible as the cases pertain to the year 2008.

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These Criminal Appeals are disposed of as above.

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V.K.MOHANAN, JUDGE

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skj

George Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

George Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

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