Allowed

Philipose Thankachan v. Vijayamma

Kerala HC14 Feb 2013CRL.A/179/2013

Case brief

AI extract

What is this about?

The High Court, on its own motion, disposed of a criminal appeal against an acquittal in a cheque dishonour case. Without notice to the respondent, the Court set aside the acquittal and restored the complaint to the trial court on the condition that the complainant deposits Rs. 2,000.

What did the court decide?

Impugned order of acquittal set aside; complaint restored to file; appellant directed to deposit Rs. 2,000.

Philipose Thankachan Vs Vijayamma — 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. 179 of 2013 (B)

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Crl.L.P..19/2013 of HIGH COURT OF KERALA DATED 18-01-2013

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AGAINST THE ORDER/JUDGMENT IN CC.84/2010 of J.M.F.C.-III, KOTTARAKKARA DATED 21-03-2011

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APPELLANT/COMPLAINANT:

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PHILIPOSE THANKACHAN, PUTHU VEEDU, CHERUVAKKAL MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, GEORGE, S/O.KOCHUMAN, VADAKKE VILA VEEDU, CHERUVAKKAL, ELAMADU VILLAGE, KOLLAM DISTRICT.

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BY ADV. SRI.JOHNSON GOMEZ

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RESPONDENTS/ACCUSED AND STATE:

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VIJAYAMMA, D/O.KESAVAN, 192, THEVALLY RESIDENTIAL ASSOCIATION (TRA) KOLLAM-9, THEVALLY MURI, THEVALLY VILLAGE, KOLLAM TALUK WORKING AS MARKETING ASSISTANT, MILMA KOLLAM DIARY, THEVALLY P.O., KOLLAM- 691009.

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

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R2 BY PUBLIC PROSECUTOR SMT.SHEEBA

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.179 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 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 21/03/2011 in C.C.No.84 of 2010 of the court of the Judicial Magistrate of the First Class-III, Kottarakkara 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.

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As I am proposed to dispose of the appeal at the

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admission stage and especially considering the provisions proposed to incorporate in the judgment to safeguard the interest of the respondent/ accused, I am of the view that notice to the respondent can be dispensed with.

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Crl.A.No.179/2013

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: 2 :

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The learned counsel for the appellant submitted that the cheque in question covers an amount of `1,30,000/- and when the case was pending before the trial court, there was a move for settlement. It is the further submission of the learned counsel that, though the complainant was absent on 21/03/2011 on the date of the impugned order, C.M.P.No.94 of 2011 was filed to excuse his absence but the learned Magistrate dismissed the same without assigning any reason. Therefore, the counsel submits that one more opportunity may be given to the complainant to prosecute the matter.

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I have carefully considered the submission made by the learned counsel for the appellant.

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From the impugned order itself it is clear that, though the complainant was absent on the impugned order, i.e., on 21/03/2011, he was represented by his counsel and an application was filed to excuse his absence. But the learned Magistrate, though dismissed the same, no reason is given to dismiss that application,

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Crl.A.No.179/2013

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: 3 :

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though ground for absence of the complainant was on medical ground. Even though the learned Magistrate has stated that the complainant is continuously absent, no data are assigned in the impugned order. It is relevant to note that, the court has taken cognizance for the offence punishable under Section 138 of the N.I. Act based upon the complaint preferred by the appellant connected with dishonour of cheque for an amount of `1,30,000/-, but there is no decision on merit. It is also pertinent to note that, on the date of the impugned order the case was posted as last chance and thus there is lapses on the part of the complainant in appearing before the court below. Having regard to the facts and circumstances involved in the case, I am of the view that, 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 21/03/2011 of the court of the Judicial Magistrate of the First Class-III, Kottarakkara in

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Crl.A.No.179/2013

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: 4 :

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C.C.No.84 of 2010 on condition that the

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appellant/complainant deposits a sum of 2,000/- (Rupees Two thousand only) in the trial court on or before **16/03/2013** . Accordingly, the appellant/complainant is directed to appear before the trial court on **16/03/2013** 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 2,000/(Rupees Two 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 2,000/-, 1,000/- shall be given to the accused and the remaining `1,000/- 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

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Crl.A.No.179/2013

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: 5 :

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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 2010.

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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

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True copy P.A. to Judge

Philipose Thankachan v. Vijayamma

Case brief

What is this about?

What did the court decide?

Philipose Thankachan v. Vijayamma

Case brief

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What did the court decide?

What the court decided

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