Partly allowed

State Bank of India, Kommady Alappuzha v. R. Bhuvanedran & Another

Kerala HC15 Feb 2013CRL.A/2075/2009

Case brief

AI extract

What is this about?

The Court allowed the criminal appeal wherein the accused was acquitted due to the complainant's absence. Setting aside the acquittal, the Court directed the appellant to deposit a fee to restore the complaint for trial on merits with expedited disposal.

What did the court decide?

Appeal allowed; acquittal quashed; Complaint restored for trial on merits subject to deposit of Rs. 2,500/ by the appellant before 15.03.2013.

State Bank of India, Kommady Alappuzha Vs R. Bhuvanedran… — 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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FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934

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CRL.A.No. 2075 of 2009 (D)

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AGAINST THE ORDER/JUDGMENT IN CC.277/2009 of C.J.M., ALAPPUZHA DATED 10-06-2009

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APPELLANT/PETITIONER/COMPLAINANT:

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STATE BANK OF INDIA, KOMMADY, ALAPPUZHA, REP.BY ITS MANAGER.

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BY ADVS.SRI.K.ANAND (A.201)

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SMT.LATHA KRISHNAN

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RESPONDENTS/ACCUSED AND STATE OF KERALA:

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R. BHUVANEDRAN, KUTTIPURATHU, NORTH ARYAD P.O., ALAPPUZHA 688 006.

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STATE OF KERALA,

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REP.BY THE STATE 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 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.2075 of 2009

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Dated this the 15^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 10/06/2009 in C.C.No.277 of 2009 of the court of the Chief Judicial Magistrate, Alappuzha 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 petitioner and the respondent.

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Though notice is served on the respondent, nobody is present.

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The learned counsel for the appellant submitted that the cheque in question covers an amount of `96,806/-. It is the further submission of the learned counsel that, when the case was posted on 29/04/2009 in

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Crl.A.No.2075/2009

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the trial court, the appellant could not appear before the court below and therefore the appellant was represented by its counsel, who moved an application to excuse the absence and the court below allowed the same and the case adjourned and posted on 10/06/2009. It is the further submission of the counsel for the appellant that the counsel for the complainant in the trial court noted down the posting date of the case as 03/07/2009 instead of 10/06/2009. Thus, when the case was taken on 10/06/2009 neither the complainant nor its counsel was present. Consequently the court proceeded to acquit the accused under Section 256(1) of Cr.P.C. Thereafter the counsel submitted that there was no lapses on the part of the appellant or its counsel in appearing before the trial court and hence one more opportunity may be given to the complainant.

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I have carefully considered the submissions made by the learned Senior counsel for the appellant. Though the learned counsel submitted several facts

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Crl.A.No.2075/2009

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justifying the absence of the appellant/ complainant or its counsel on 10/06/2009, no material or evidence is produced to substantiate those facts. It is also an admitted fact that on 29/04/2009 the appellant was absent and therefore an application was moved to excuse its absence. 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 upon the complaint preferred by the appellant connected with dishonour of cheque covering an amount of `96,806/-, there is no decision on merit. Having regard to the facts and circumstances involved in the case, according to me, though there is lapses on the part of the complainant/ appellant, it is only just and proper to grant one more opportunity in favour of 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 10/06/2009 of the court of the Chief Judicial Magistrate, Alappuzha in C.C.No.277 of 2009 on

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Crl.A.No.2075/2009

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condition that the appellant/complainant deposits a sum of 2,500/- (Rupees Two thousand five hundred only) in the trial court on or before **15/03/2013** . Accordingly, the appellant/complainant is directed to appear before the trial court on **15/03/2013** 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 2,500/- (Rupees Two thousand five hundred 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 2,500/-, 1,500/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 appeal will

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Crl.A.No.2075/2009

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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 2009.

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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

State Bank of India, Kommady Alappuzha v. R. Bhuvanedran & Another

Case brief

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State Bank of India, Kommady Alappuzha v. R. Bhuvanedran & Another

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