Remanded

M.R. Babu v. Kunjumon

Kerala HC11 Mar 2013CRL.A/286/2013

Case brief

AI extract

What is this about?

The High Court disposed of a criminal appeal against the acquittal of the accused in a cheque-bounce case. Noting the complainant's initial diligence but recent lapse in appearing, the court set aside the acquittal and remanded the case to the trial court to dispose of the matter on merit, subject to the complainant depositing Rs. 3000.

What did the court decide?

The appeal was disposed of; the impugned order quashing the acquittal was set aside, and the matter was remanded to the trial court for fresh disposal of the case on merit.

M.R. Babu Vs Kunjumon — 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 11TH DAY OF MARCH 2013/20TH PHALGUNA 1934

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CRL.A.No. 286 of 2013

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Crl.L.P..92/2013 of HIGH COURT OF KERALA DATED 07-02-2013

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AGAINST THE ORDER/JUDGMENT IN ST.7180/2009 of J.M.F.C., MUVATUPUZHA DATED 30-11-2012

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APPELLANT/COMPLAINANT:

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M.R. BABU,

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MANPURATH HOUSE, MULAKKULAM NORTH.

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BY ADV. SRI.GEORGE SEBASTIAN

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RESPONDENTS/ACCUSED AND STATE:

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KUNJUMON JOHN, OZHIYAMKUNNEL HOUSE, KARIMPANA P.O., KOOTHATTUKULAM-686 662.

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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.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.286 of 2013

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Dated this the 11^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 judgment dated 30/11/2012 in S.T.No.7180 of 2009 of the court of the Judicial Magistrate of the First Class, Muvattupuzha by which the learned Magistrate acquitted the accused under Section 255(1) of the Cr.P.C.

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Heard the learned counsel for the appellant. As I am proposed to dispose of this appeal at the admission stage itself and considering the safe-guard proposed to incorporate in the judgment to protect the interest of the accused, I am of the view that notice to the respondent/ accused can be dispensed with.

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The learned counsel for the appellant vehemently submitted that the accused entered

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Crl.A.No.286/2013

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appearance only on 13/11/2011, that too after initiating steps under Sections 82 and 83 of Cr.P.C. at the instance of the complainant and though there were sufficient postings prior to 13/11/2011, the accused never cared to appear before the court. It is the further submission of the learned counsel that, after the appearance of the accused on 13/11/2011, there were only three effective postings i.e. on 30/11/2011, 02/11/2012 and finally on 30/11/2012. It is the further submission of the learned counsel that, on 02/11/2012 neither the complainant nor his counsel could appear before the court below, as there was a traffic block, and on 30/11/2012, as the complainant was laid up due to back-pain, he failed to appear before the court below but he was represented by his counsel. But the learned Magistrate without considering the above facts, proceeded to acquit the accused under Section 255(1) of Cr.P.C. According to the learned counsel, the above approach of the learned Magistrate is not correct especially when the cheque in

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Crl.A.No.286/2013

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question covers an amount of Rupees Three lakhs. Therefore, the counsel submits that an opportunity may be given to the appellant/ complainant to adduce evidence and to have a decision on merit.

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I have carefully considered the submissions made by the learned counsel for the appellant and I have gone through the judgment of the trial court as well as the 'B' diary proceedings of the court below, which was produced along with the Leave Petition as Annexure-A. On going by Annexure-A proceedings it appears to me that submission of the learned counsel for the appellant is correct to the extent that the appellant was prosecuting the matter diligently. Though the learned counsel for the appellant made certain submissions as the reason for the absence of the complainant/ appellant on 02/11/2012 as well as on 30/11/2012, no material or evidences are produced to substantiate those submissions. Therefore, even though the appellant was diligently prosecuting the mattter, there was lapse on his part in appearing before

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the court below either on 02/11/2012 or on 30/11/2012 and adducing evidence. 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 based upon the complaint preferred by the appellant connected with the dishonour of cheque, which covers an amount of Rupees Three lakhs, there is no decision on merit. Having regard to the facts and circumstances involved in the case, according to me, it is only just and proper to give an opportunity to the complainant to prosecute the matter by adducing evidence and to have a decision on merit. But such an opportunity can be given only on terms as there was lapse on the part of the complainant in adducing evidence in spite of the positive direction issued by the learned Magistrate.

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In the result, this appeal is disposed of setting aside the judgment dated 30/11/2012 of the court of the Judicial Magistrate of the First Class, Muvattupuzha in S.T.No.7180 of 2009 and remanded the matter to the trial

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court to fresh disposal of the case, on condition that the appellant/complainant deposits a sum of 3,000/- (Rupees Three thousand only) in the trial court on or before **11/04/2013** . Accordingly, the learned Magistrate is directed to post the above case on **11/04/2013,** on which date the appellant is directed to appear before the trial court and the learned Magistrate is further directed to proceed with the trial of the case, on his satisfaction that the appellant/ complainant appearing before him either in person on through his agent and on further satisfaction that the appellant depositing the amount of 3,000/-, from the stage at which the judgment was pronounced in accordance with the procedure and law and dispose of the same on merit. On appearance of the accused/ respondent, out of 3,000/- a sum of 2,000/- shall be paid to him and the remaining amount 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

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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 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

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True copy

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P.A. to Judge

M.R. Babu v. Kunjumon

Case brief

What is this about?

What did the court decide?

M.R. Babu v. Kunjumon

Case brief

What is this about?

What did the court decide?

What the court decided

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