Allowed

P.Suresh Kumar v. State of Kerala

Kerala HC15 Mar 2013CRL.A/341/2013

Case brief

AI extract

What is this about?

The High Court disposed of a criminal appeal against an order acquitting the accused in a cheque dishonour case. It set aside the acquittal and remanded the matter for trial, directing the appellant to deposit Rs. 1,000 and appear personally. The trial court was directed to restore the complaint and expedite proceedings upon satisfaction of conditions.

What did the court decide?

Order dated 01.12.2010 set aside; filed restored; appellant directed to deposit Rs.1,000 and appear on 17.04.2013 for trial to proceed on merit.

P.Suresh Kumar Vs State of Kerala — 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 MARCH 2013/24TH PHALGUNA 1934

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CRL.A.No. 341 of 2013 ()

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AGAINST THE ORDER/JUDGMENT IN ST.NO.6616/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT I, KOLLAM DATED 01-12-2012

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AGAINST THE ORDER/JUDGMENT IN Crl.L.P..150/2013 OF HIGH COURT OF KERALA DATED 08-03-2013

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APPELLANT(S):PETITIONER:

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P.SURESH KUMAR, VILLUMANGALATHU VEEDU, KADAVOOR, PERINADU PO, KOLLAM.

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BY ADVS.SRI.PRATHEESH.P SMT.CHITHRA.S.BABU

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RESPONDENT(S):RESPONDENTS;

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1. JOY XAVIER, PALLIMANEEL, HIGHWAYT BHVAN, NEENDAKARA, KOLLAM - 691 301.

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2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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R2 BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Kss

V.K.MOHANAN, J.

Crl.A.No.341 of 2013

Dated this the 15^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 01.12.2010 in S.T.No.6616 of 2010 of the court of Judicial Magistrate of First Class-1, Kollam, 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. As I am propose to dispose of this appeal and considering the safeguard proposed to be incorporated in the order, to save the interest of the accused, I am of the view that, notice to the accused can be dispensed with.

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The counsel for the appellant submitted that in fact the complaint was filed during the year 2005 and the court took cognizance immediately thereafter and instituted C.C.No.1103 of 2005. Though the accused appeared in the said case subsequently he absconded and, therefore, the case was

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Crl.A.No.341 of 2013

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removed to the Long Pending Register and when the accused surrendered the same is renumbered as S.T.No.6616 of 2010 and posted on 28.12.2010. Counsel submits that no information was furnished either to the complainant or to his counsel when the case is renumbered and posted in the trial court and it was for the above reason, neither the complainant nor his counsel present when the case was taken on 01.12.2010. Thus, according to the counsel, there was no negligence in appearing before the court below or in prosecuting the matter and considering the amount involved in the case, one more opportunity may be given to the complainant to prosecute the matter effectively.

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During the time of the argument, though the B'diary proceedings of the court below is not produced, a certified copy of the same is handed over to me and submitted that on 03.10.2012, though it is recorded that the complainant represented the same was due to mistake and right from 28.12.2010 neither the complainant nor his counsel appeared before the court till 01.12.2010. The endorsement of the court below dated 28.12.2010, read as “28.12.2010: Accused present.

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Crl.A.No.341 of 2013

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The case is refiled as S.T.6616/2010. The accused is granted bail on his executing a bond for Rs.8,000/- with two solvent sureties each for the like sum. Issue notice to the complainant to 07.05.2011”. [emphasis supplied] From the above endorsement of the court below it appears that the submission made by the learned counsel for the appellant is correct. It is also relevant to note that though on 28.12.2010 notice was ordered to the complainant, on none of the subsequent proceedings it is seen recorded that notice served on the complainant. In the impugned order also there is no whisper to the effect that the complainant was absent in spite of service of notice on him after refiling of the case as S.T.No.6616/2010. It is also relevant to note that though the court below took cognizance for the offence punishable under Section 138 of the Negotiable Instruments Act, connected with the dishonour of cheque of Rs.70,000/- there is no decision on merit. Therefore according to me the appellant can be given one more opportunity to prosecute the matter on merit. But it is also relevant to note that it was the duty of the complainant or his counsel to follow the proceedings of the court below and to appear before the court as and when the case is posted. In the

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Crl.A.No.341 of 2013

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present case it is further relevant to note that as per order dated 28.12.2010, notice was ordered to the complainant and thereafter there were 10 postings of the case. So, according to me, there is lapse on the part of the complainant in prosecuting the matter vigilantly. In the above circumstances, according to me, further opportunity can be given only in terms.

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In the result, this appeal is disposed of setting aside the order dated 01.12.1010 in S.T.No.6616 of 2010 of the court of Judicial First Class Magistrate-1, Kollam, on condition that the appellant/complainant deposits a sum of Rs.1,000/- (Rupees One Thousand only) on or before 17.04.2013 in the trial court. Accordingly, the appellant is directed to appear before the trial court on 17.04.2013 , 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 court on the date fixed for his appearance and

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Crl.A.No.341 of 2013

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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, the sum of Rs.1,000/- shall be deposited in the State Exchequer. As the case pertains to the year 2005, 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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V.K.MOHANAN, Judge

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mns

P.Suresh Kumar v. State of Kerala

Case brief

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P.Suresh Kumar v. State of Kerala

Case brief

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