Remanded

Manzoor Illahi M v. Krishnakumar G

Kerala HC18 Feb 2013CRL.A/192/2013

Case brief

AI extract

What is this about?

In an appeal against an acquittal under Section 138 of the Negotiable Instruments Act due to the complainant's failure to appear for evidence, the High Court remanded the case to the trial court on the condition that the appellant deposits a sum of Rs. 3,500.

What did the court decide?

The appeal was disposed of by setting aside the lower court's order and remanding the matter to the trial court on the condition that the appellant deposits Rs. 3,500 within one month and appears befo

Manzoor Illahi M Vs Krishnakumar G — 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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MONDAY, THE 18TH DAY OF FEBRUARY 2013/29TH MAGHA 1934

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CRL.A.No. 192 of 2013 ()

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(AGAINST THE JUDGMENT IN CC.341/2008 of J.M.F.C.-I, KOLLAM DATED 29-09-2012)

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APPELLANT(S)/PETITIONER/COMPLAINANT:-

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MANZOOR ILLAHI M KOIKKAL, KILIKOLLUR P.O., KOLLAM.

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BY ADV. SRI.PIOUS JACOB

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RESPONDENT(S)/RESPONDENTS/ACCUSED:-

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1. KRISHNAKUMAR G ELENJIVELI (ELENJICAL), NADAVATHU, CHERIYA PANMANA KARUNAGAPPALLY.

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

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R BY PUBLIC PROSECUTOR SMT.JASMINE V.H.

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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= = = = = = = = = = = = = Crl.Appeal No.192 of 2013.

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= = = = = = = = = = = = =

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Dated this the 18^th 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 punishable under Section 138 of the Negotiable Instruments Act, 1991 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 29.9.2012 in CC.No.341/2008 of the Court of the Judicial Magistrate of the First Class-I, Kollam by which the learned Magistrate acquitted the accused under Section 255(1) of the Crl.P.C.

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Heard the learned counsel for the appellant.

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The learned counsel for the appellant

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submitted that the accused borrowed from the complainant a sum of ` 5,00,000/- and issued two cheques. It is the further submission of the counsel that the clerk attached to the counsel in the trial court failed to note down the exact posting date of the case and therefore when the case was

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Crl.Appeal No.192/2013.

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called on 29.9.2012, neither the complainant nor his counsel appeared before the court below. Resultantly, the court below passed the impugned order. It is the further submission of the counsel that considering the huge amount involved in this case, one more opportunity may be given to the petitioner to prosecute the matter on merit.

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I have carefully considered the submission made by the counsel for the appellant and also perused the order.

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Though the counsel for the appellant submitted several facts to justify the absence of the complainant or his counsel, those facts are not substantiated by producing any material evidence. It is also relevant to note that from the impugned order it can be seen that the case was posted as last chance to adduce evidence. Thus it can be seen that there was lapse on the side of the complainant who is the appellant herein in appearing before the court below and adducing evidence in support of his allegation against the

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Crl.Appeal No.192/2013.

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prosecution. From the impugned order it appears that the failure on the part of the counsel or the complainant is not only on the impugned order itself. Since it can be seen that the case was posted as last chance, which shows that previously the complainant was granted opportunity to adduce evidence. But at the very same time, it is relevant to note that, though the court below has taken cognizance for the offence 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 Rs.5,00,000/-, there is no decision on merit even though the impugned order is issued under Sec.255(1) of Crl.P.C. Therefore, according to me, it is only just and proper to remand the matter to the trial court, for fresh consideration of the case on merit since there was a lapse on the part of the complainant in adducing evidence. But such further opportunity can be given only on terms.

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Crl.Appeal No.192/2013.

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In the result, this appeal is disposed of setting aside the order dated 29.9.2012 in CC.No.341 of 2008 of the Court of the Judicial Magistrate of the First Class-I, Kollam and remanded the matter to the said court, on condition that the appellant deposits a sum of Rs.3,500/- in the trial court within one month from today. Accordingly, the learned Magistrate is directed to restore the complaint on file and to post the same on 18.3.2013 on which date the complainant is directed to appear before the trial court. On the satisfaction of the learned Magistrate that the complainant deposits a sum of Rs.3,500/- as directed above and on appearance of the complainant on the date fixed for his appearance, the learned Magistrate is directed to proceed with the trial of the case, from the stage at which the case was posted on 29.9.2012, in accordance with the procedure and law and to dispose of the same on merit. In case the appellant deposits the amount, a sum of Rs.2,500/-

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Crl.Appeal No.192/2013.

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shall be paid to the accused on his appearance and the remaining amount shall be remitted to the State Exchequer. In case the complainant co-operates with the trial, 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 2008.

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V.K.MOHANAN, (Judge)

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Kvs/-

Manzoor Illahi M v. Krishnakumar G

Case brief

What is this about?

What did the court decide?

Manzoor Illahi M v. Krishnakumar G

Case brief

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