Allowed

Southern Auto Finance v. Baiju

Kerala HC18 Mar 2013CRL.A/222/2010

Case brief

AI extract

What is this about?

The High Court set aside an acquittal order in a Section 138 NI Act case due to lack of speaking order. It directed the appellant to deposit 2,000 rupees to restore the complaint for trial within one month, with conditions for fund distribution and expedited proceedings.

What did the court decide?

The impugned order of acquittal was set aside. The complaint was restored for trial on condition that the appellant deposits 2,000 rupees within one month.

Southern Auto Finance Vs Baiju — 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 MARCH 2013/27TH PHALGUNA 1934

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CRL.A.No. 222 of 2010 ( )

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ST.3595/2007 of J.M.F.C., MUVATUPUZHA DATED 05-12-2009

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APPELLANT(S)/PETITIONER/COMPLAINANT:

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SOUTHERN AUTO FINANCE, MUVATTUPUZHA, REP.BY MANAGER AND POWER OF ATTORNEY HOLDER, K.V.MATHAI.

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BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA

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RESPONDENT(S)/RESPONDENTS & STATE:

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1. BAIJU.C.G, VHAVARNANICKAL HOUSE, VAZHAKULAM PO, MUVATTUPUZHA.

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2. STATE OF KERALA,

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REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.222 of 2010

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Dated this the 18^th day of March, 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, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 5.12.2009 in S.T.No.3595 of 2007 of the court of Judicial First Class Magistrate-Muvattupuzha, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

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Heard the counsel for the appellant and I have perused the judgment impugned in this appeal. As I am proposed to dispose the appeal at the admission stage itself and considering the measure proposed to incorporate in the judgment, to safeguard the interest of the accused, according to me, notice to the respondent/accused can be

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Crl.A.No.222 of 2010

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dispensed with.

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Learned counsel for the appellant vehemently submitted that the impugned order was passed on the first posting date itself, after recording the plea of the accused on 28.2.2009 and it is also submitted that though the complainant was absence, his counsel was present who represents the complainant. In spite of those facts, the learned Magistrate, without assigning any proper reason proceeded to acquit the accused under section 256(1) of Cr.P.C. Therefore, the counsel submits that one more opportunity may be given to the appellant to prosecute the matter on merit.

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

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It is pertinent to note that, what is produced before this Court as the impugned order is, only a certified copy of the extract of the B'diary proceedings of the court below, which was obtained by the appellant on his application for the certified copy of the judgment/order.

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Crl.A.No.222 of 2010

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From the proceedings which is produced and under challenge, this Court is not in a position to ascertain why the learned Magistrate has decided to proceed to acquit the accused under section 256(1) of Cr.P.C. So, according to me, the learned Magistrate has miserably failed to pass a speaking order. However, from the submission of the learned counsel and from the facts stated, particularly in paragraphs 2 and 3 of the appeal memorandum, it appears that the appellant was not present on 5.12.2009, ie., on the date of the impugned order. Though the counsel for the appellant submitted that the counsel for the appellant in the trial court was present and the representative of the complainant reached in the court belatedly due to the traffic block, no material or evidence is produced to substantiate the above submission. However, considering the fact that though the court has taken cognizance for the offence punishable under section 138 of the NI Act connected with the dishonour of cheque for an amount of `20,000/- on the basis of the complaint preferred by the

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Crl.A.No.222 of 2010

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appellant, there is no decision on merit, and according to me, one more opportunity can be given to the appellant/complainant to prosecute the matter on merit but on terms.

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In the result, this appeal is disposed of setting aside the order dated 5.12.2009 in S.T.No.3595 of 2007 of the court of Judicial First Class Magistrate-Muvattupuzha, on condition that the appellant/complainant deposits a sum of `2,000/- (Rupees Two Thousand only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 18.4.2013 , on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant depositing the amount as directed above, the learned Magistrate 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. It is made clear that if there is any failure on the part of the appellant either in appearing before the

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Crl.A.No.222 of 2010

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court on the date fixed for his appearance and depositing the above amount within the time stipulated above, this order will stand vacated and consequently this appeal will also stand dismissed. In case the appellant/complainant complies with the above direction, and on the appearance of the accused, out of 2,000/-, which would be deposited, a sum of 1,500/- shall be given to the accused and a sum of `500/- shall be remitted to the State Exchequer. As the case pertains to the year 2009, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible.

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The Criminal Appeal is disposed of as above.

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Sd/-

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V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Southern Auto Finance v. Baiju

Case brief

What is this about?

What did the court decide?

Southern Auto Finance v. Baiju

Case brief

What is this about?

What did the court decide?

What the court decided

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