Partly allowed

T.v.Savier @ T.v.Savi v. Ajith Kumar Menon

Kerala HC23 Mar 2013CRL.A/388/2013

Case brief

AI extract

What is this about?

In a Criminal Appeal against an acquittal in a cheque dishonour case, the High Court of Kerala found no illegality in the trial court's order due to the complainant's absence. However, recognizing the high value involved, it set aside the acquittal and granted the complainant one more opportunity to prosecute upon payment of a deposit.

What did the court decide?

Acquittal set aside; appeal disposed of by directing appeal complainant to deposit `5,000/- within one month; trial restored to court of record on merit.

T.v.Savier @ T.v.Savi Vs Ajith Kumar Menon — Cheque Dishonour | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE V.K.MOHANAN

¶4

SATURDAY, THE 23RD DAY OF MARCH 2013/2ND CHAITHRA 1935

¶5

CRL.A.No. 388 of 2013 ()

¶6

CC.157/2011 of J.M.F.C.-II,THRISSUR DATED 13-07-2012

¶7

APPELLANT(S)/COMPLAINANT:

¶8

T.V.SAVIER @ T.V.SAVI S/O.THARAKAN, PATTATHAYIL VARGHESE, KOONAMMOOCHI DESOM CHOONDAL VILLAZGE, THALAPPILLY TALUK.

¶9

BY ADV. SRI.P.K.SAJEEV

¶10

RESPONDENT(S)/ACCUSED :

¶11

1. AJITH KUMAR MENON, S/O.INDIRA G.NAIR, PARUVAKKATT HOUSE, P.O.CHOONDAL THALAPPILLY TALUK

¶12

PRESENT ADDRESS-OMEGA GENTING PALACE, FLAT NO.4D 4TH FLOOR, SANKARAMKULANGARA ROAD, POONKUNNAM THRISSUR-680 002.

¶13

2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA.

¶14

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

¶15

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

ami/

¶17

V.K.MOHANAN, J.

¶18

Crl.A.No.388 of 2013

¶19

Dated this the 23^rd day of March, 2013.

¶20

J U D G M E N T

¶21

The complainant in a prosecution for the offence

¶22

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 13.7.2012 in C.C.No.157 of 2011 of the court of Judicial First Class Magistrate-II, Thrissur, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.

¶23

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

¶24

¶25

Crl.A.No.388 of 2013

¶26

dispensed with.

¶27

Learned counsel for the appellant vehemently submitted that the appellant was prosecuting the matter effectively and vigilantly. The case was posted in the Adalat on two occasions ie., on 19.5.2011 and on 7.5.2012 and the complainant was present on all occasions and finally, as no settlement was arrived on 7.5.2012, the case was posted in the court on 1.6.2012 from which date the case was again posted on 13.7.2012 for the evidence, as last chance. But according to the learned counsel, on 13.7.2012, the complainant could not appear before the trial court as he was laid up due to viral fever but he was represented by his counsel. Still then, the learned Magistrate proceeded to acquit the accused under section 256(1) of Cr.P.C., which is incorrect. It is the further submission of the counsel that since the cheque in question covers an amount of `20 lakhs, the appellant may be granted one more opportunity to prosecute the matter.

¶28

I have carefully considered the submissions

¶29

¶30

Crl.A.No.388 of 2013

¶31

made by the counsel for the appellant. Though the learned counsel submitted several facts with respect to the various proceedings prior to the order of the court below impugned in this appeal, no document or evidence is produced to substantiate those submissions. It is also relevant to note that even from the submission of the counsel it can be seen that the court below has posted the case on several occasions for disposal either on merit or by way of settlement. Thus finally on 13.7.2012, though the case was posted as last chance for the evidence, the complainant was absent and no evidence is adduced. It is also discernible from the order and also from the submission of the learned counsel that no application is filed before the court below for exemption of the appellant from personal appearance on medical ground. When the case was posted for evidence, the mere presence of the counsel for the appellant is not sufficient. Therefore, I find no reason to held that the order of the learned Magistrate is illegal. However, it can be seen that the cheque in question covers an amount of `20 lakhs

¶32

¶33

Crl.A.No.388 of 2013

¶34

and there is no decision on merit. Therefore, according to me, even though there is lapse on the part of the complainant, it is only just and proper to grant him one more opportunity to prosecute the matter by imposing appropriate terms.

¶35

In the result, this appeal is disposed of setting aside the order dated 13.7.2012 in C.C.No.157 of 2011 of the court of Judicial First Class Magistrate-II, Thrissur, on condition that the appellant/complainant deposits a sum of `5,000/- (Rupees Five Thousand only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 23.4.2013 , 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

¶36

¶37

Crl.A.No.388 of 2013

¶38

appearing before the 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 5,000/-, which would be deposited, a sum of 3,500/- shall be given to the accused and a sum of `1,500/- shall be remitted to the State Exchequer. As the case pertains to the year 2011, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible.

¶39

The Criminal Appeal is disposed of as above.

¶40

Sd/- V.K.MOHANAN, Judge

¶41

ami/

¶42

//True copy//

¶43

P.A. to Judge

T.v.Savier @ T.v.Savi v. Ajith Kumar Menon

Case brief

What is this about?

What did the court decide?

T.v.Savier @ T.v.Savi v. Ajith Kumar Menon

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S. North Shore Foods P. Ltde. Vs Ashif Muhammed & Another

V.S. Chandran Vs Bindhu, D/O.Radha

Vinod Kumar N.S. Vs Nissam

O.K.Ajith Kumar Vs Smt.Haseena

K.Ummer Haji Vs Sayed Alavi

Jayasekharan Thampy Vs State of Kerala