Partly allowed

Jayasekharan Thampy v. State of Kerala

Kerala HC23 Mar 2013CRL.A/392/2013

Case brief

AI extract

What is this about?

The High Court disposed of the criminal appeal against an acquittal in a cheque dishonour case under the Negotiable Instruments Act. The Court set aside the acquittal order and remitted the matter to the trial court for fresh prosecution on merits. The appellant was granted an opportunity to prosecute provided they deposited a specific sum as security and complied with appearance directions. Failu

What did the court decide?

The impugned order of acquittal was set aside. The appellant was directed to deposit ₹3,850 in the trial court and appear on 23/04/2013 for fresh prosecution. Failure to comply would result in dismiss

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

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CRL.A.No. 392 of 2013 (D)

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Crl.L.P..160/2013 of HIGH COURT OF KERALA DATED 15-03-2013

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AGAINST THE ORDER/JUDGMENT IN ST.2316/2010 of J.M.F.C.-I, KOLLAM DATED 25-01-2013

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APPELLANT/COMPLAINANT:

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JAYASEKHARAN THAMPY, S/O.VELAPPAN PILLAI, MAKAYIRAM, PRIYADARSHINI NAGAR, KILIKOLLOOR, KOLLAM.

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BY ADVS.SRI.S.RAJEEV

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SRI.K.K.DHEERENDRA KRISHNAN

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RESPONDENTS/ACCUSED/STATE:

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STATE OF KERALA, REP. BY THE PUBLIC PROSECTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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RASEENA, SAJEENA MANZIL, ULIYAKKOVIL P.O., KOLLAM - 691 019.

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R1 BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.392 of 2013

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Dated this the 23^rd 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 25/01/2013 in S.T. Case No.2316 of 2010 of the court of the Judicial Magistrate of the First Class-I, 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. As I am proposed to dispose this appeal at this 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 the notice to the respondent/ accused can be dispensed with.

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The learned counsel for the appellant submitted that, on the date of the impugned order the complainant

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Crl.A.No.392/2013

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: 2 :

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could not appear before the court below due to chest pain but he was represented by his counsel. But the learned Magistrate ignoring the above facts acquitted the accused under Section 256(1) of Cr.P.C. which approach of the learned Magistrate, according to the learned counsel, is improper, incorrect and illegal. It is the submission of the learned counsel that, considering the amount involved connected with the cheque in question, one more opportunity may be given to the complainant to prosecute the matter.

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I have carefully considered the submissions made by the learned counsel for the appellant and I have gone through the order impugned in this appeal.

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Though the learned counsel for the appellant has submitted that the complainant was absent on medical ground on the date of the impugned order as rightly observed by the learned Magistrate, no medical certificate is produced before the court below. The same is the position in this Court and no medical certificate is also produced along with this appeal. Further it is

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Crl.A.No.392/2013

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: 3 :

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discernible from the impugned order that, before the posting of the case on the date of the impugned order, there was a previous posting for evidence as last chance. On that occasion also no evidence was adduced. So the lapse on the part of the complainant is crystal clear. However, from the order of the learned Magistrate it is not clear as to whether the complainant was regularly absent and whether the learned Magistrate was of the opinion that the complainant was negligent in prosecuting the matter. No datas are furnished in the order so as to enable this Court to consider the above question. It is also relevant to note that, though the cheque in question covers an amount of `3,85,000/-, there is no decision on merit. Therefore, having regard to the entire facts and circumstances involved in the case, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit, but on terms, since there was lapse on the part of the complainant.

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Crl.A.No.392/2013

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: 4 :

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In the result, this appeal is disposed of setting aside the order dated 25/01/2013 of the court of the Judicial Magistrate of the First Class-I, Kollam in S.T.Case No.2316 of 2010 on condition that the appellant/complainant deposits a sum of 3,850/- (Rupees Three thousand eight hundred and fifty only) in the trial court on or before **23/04/2013** . Accordingly, the appellant/complainant is directed to appear before the trial court on **23/04/2013** on which date, the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of 3,850/- (Rupees Three thousand eight hundred and fifty only) in the court below as directed above, he 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. Out of the sum of 3,850/-, 3,000/- shall be given to the accused and the remaining `850/- shall be deposited 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

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Crl.A.No.392/2013

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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 proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2010.

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This Criminal Appeal is disposed of as above.

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Sd/- V.K.MOHANAN, JUDGE

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skj

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True copy P.A. to Judge

Jayasekharan Thampy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jayasekharan Thampy v. State of Kerala

Case brief

What is this about?

What did the court decide?

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