Partly allowed

M.G.Fernandez v. State of Kerala and Another

Kerala HC5 Mar 2013CRL.A/2129/2010

Case brief

AI extract

What is this about?

In a criminal appeal against an acquittal in a cheque dishonour case, the High Court set aside the lower court's order due to a cryptic order and failure to decide on merit. The Court allowed the complainant one more opportunity to prosecute the matter on merit subject to depositing ₹3,000 and cooperating with the trial.

What did the court decide?

Appeal disposed; impugned order set aside; trial court directed to restore the case file on condition of ₹3,000 deposit by April 5, 2013 and subsequent cooperation by the appellant.

M.G.Fernandez Vs State of Kerala and Another — 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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TUESDAY, THE 5TH DAY OF MARCH 2013/14TH PHALGUNA 1934

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CRL.A.No. 2129 of 2010 (A)

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Crl.L.P..928/2010 of HIGH COURT OF KERALA DATED 15-09-2010

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AGAINST THE ORDER/JUDGMENT IN ST.77/2009 of J.M.F.C. - III, KOLLAM DATED 15-02-2010

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APPELLANT/COMPLAINANT:

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M.G.FERNANDEZ,AGED 77 YEARS,

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S/O.FERNANDEZ, KADAYIL APARTMENT, BISHOP PALACE, THANGASSERI, KOLLAM.

BY ADVS.SRI.V.V.RAJA

SRI.R.RANJITH

SRI.M.T.SURESH KUMAR

RESPONDENTS/STATE & ACCUSED:

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SANJAY GOPALAKRISHNAN,PALM DALE BUNGLOW, KAUMUDI NAGAR, PALLITHOTTAM. P.O., KOLLAM.

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

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R1 BY ADV. SRI.SAJJU.S

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R2 BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.2129 of 2010

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Dated this the 05^th day of March, 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 15/02/2010 in S.T.No.77 of 2009 of the court of the Judicial Magistrate of the First Class-III, Kollam 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 and the respondent.

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The learned counsel for the appellant submitted that the complainant is an aged man and therefore he could not appear before the court below on 15/02/2010 and his counsel, as he was engaged in some other court, could not reach the court in time. It is the further

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Crl.A.No.2129/2010

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submission of the learned counsel that, since the cheque in question covers an amount of `2,50,000/-, one more opportunity may be given to the complainant to prosecute the matter on merit.

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The learned counsel for the respondent submitted that the learned Magistrate was constrained to issue the impugned order as the complainant has miserably failed to co-operate with the trial of the case and to take steps as ordered by the court below. Therefore, according to the learned counsel no interference is warranted.

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I have carefully considered the submissions made by the learned counsel for the appellant and the respondent.

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The impugned order of the learned Magistrate is cryptic in nature and therefore this Court is not in a position to ascertain whether the learned Magistrate has applied his mind in invoking Section 256(1) of Cr.P.C. From the order it appears that the court was constrained

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Crl.A.No.2129/2010

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to order coercive steps against the accused as he failed to appear before the court below. Still the complainant failed to take appropriate steps in time and there was no representation when the case was called on 15/02/2010. However, it is pertinent to note that, though the court has taken cognizance for the offence punishable 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 `2,50,000/-, there is no decision on merit. Therefore, according to me, eventhough there was some lapse on the part of the complainant/ appellant it is only just and proper to grant one more opportunity to the complainant to prosecute the matter, but subject to terms.

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In the result, this appeal is disposed of setting aside order dated 15/02/2010, on condition that the appellant deposits a sum of `3,000/- in the trial court on or before 05/04/2013, on which date the learned Magistrate is directed to restore S.T.No.77 of 2009 on the file of the

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Crl.A.No.2129/2010

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court below. The appellant as well as the respondent is directed to appear before the trial court on 05/04/2013 on the satisfaction of the learned Magistrate that the appellant/complainant deposited 3,000/-, the learned Magistrate is further directed to proceed with the trial of the case in accordance with proceedure and law and dispose the same on merit. In case of depositing the amount of 3,000/- and on the appearance of the accused/ respondent, a sum of 2,000/- shall be paid to him and the remaining amount of 1,000/- shall be remitted 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 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

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Crl.A.No.2129/2010

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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

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True copy

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P.A. to Judge

M.G.Fernandez v. State of Kerala and Another

Case brief

What is this about?

What did the court decide?

M.G.Fernandez v. State of Kerala and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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