Partly allowed

M/S.Assurance Kuries (P) Ltd. v. State of Kerala

Kerala HC17 Nov 2017CRL.A/1013/2017

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the trial court's acquittal of an accused under S.138 NI Act, restored the complaint to the trial court, directed the appellant to pay costs, and ordered mediation. The case is remanded for further proceedings contingent on payment of costs and the outcome of mediation.

What did the court decide?

The impugned acquittal order is set aside; the complaint is restored for trial; the appellant is directed to pay Rs.1,500 as costs and appear for mediation on 30.12.2017.

M/S.Assurance Kuries (P) Ltd. Vs State of Kerala — Cheque Dishonour | Kerala HC (2017)

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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 ALEXANDER THOMAS

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FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939

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CRL.A.No. 1013 of 2017

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CC 2819/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,IRINJALAKUDA

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--------------

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PETITIONER/COMPLAINANT:

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ASSURANCE KURIES (P) LTD, CHERRY COMPLEX, TANA, IRINJALAKUDA REPRESENTED BY ROY.K.G.,AGED 49, S/O.GEORGE, KIDANGOTTU HOUSE, CHAZHOOR HOUSE, GANDHIGRAM, IRINJALAKUDA, THRISSUR DISTRICT.

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BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.N.L.BITTO

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RESPONDENT(S)/COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.682 031.

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2. JERINA, AGED 35, W/O.STEAPHAN, PAYAMMAL HOUSE, GANDHIGRAM, IRINJALAKUDA P.O., THRISSUR DISTRICT.680001.

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R1 BY PUBLIC PROSECUTOR SRI JESTINE MATHEW R2 BY ADV. SRI.M.C.GOPI

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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ALEXANDER THOMAS, J.

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Crl.A.No.1013 Of 2017

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Dated this the 17th day of November, 2017.

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The order under challenge in this Criminal Appeal is the one rendered by the trial court concerned (Judicial First Class Magistrate Court, Irinjalakuda), in C.C.No.2819/2011, whereby the accused has been acquitted of the offence punishable under Sec.138 of the N.I. Act in view of the enabling provisions conferred under Sec.256(1) of the Cr.P.C. The appellant herein is the complainant and the 2 nd respondent herein is the accused in the above said complaint in C.C.No.2819/2011. The cheque amount is for Rs.1,27,600/-.

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Heard Sri.N.L.Bitto, learned counsel appearing for the appellant/complainant, Sri.M.C.Gopi, learned counsel appearing for R-2 (accused) and Sri.Jestin Mathew, learned Prosecutor appearing for R-1 State.

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The impugned order dated 13.11.2013 reads as follows:

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“ORDER

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The case was called on for hearing today to which it had been posted. Accused present. Complainant absent. Represented. Though repeated direction given

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Crl.A.No.1013 Of 2017

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to complainant to file personal appearance and to adduce evidence complainant did not turned up. Hence I am in a view that the complainant is not at all interested to adduce evidence. Hence complaint is dismissed and accused is acquitted under section 256, Criminal Procedure Code.”

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It is averred in para 2 of the appeal memorandum that on 13.11.2013, on the day on which the impugned order was passed, the appellant was laid up and the counsel represented the matter and without considering the facts and circumstances and the submissions made on behalf of the complainant, the trial court has not condoned the absence of the complainant and has proceeded to acquit the accused as per the impugned order rendered on 13.11.2013. Though there is an averment in the memorandum of Criminal Appeal that the complainant was laid up on 13.11.2013, so as to justify his absence on the day, no medical certificate or any other convincing materials have been produced before this Court. However, taking note of the fact that the Advocate for the complainant was present on that day and made a specific request for condoning the personal appearance of the appellant due to his illness, etc., a lenient view could be taken, but subject to payment of cost. Accordingly, it is ordered that the appellant shall pay cost of Rs.1,500/(Rupees One Thousand and Five Hundred only) to the learned counsel appearing for R-2 herein, within a period of 2 weeks from the date of

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Crl.A.No.1013 Of 2017

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receipt of a certified copy of this judgment and shall produce the receipt evidencing payment of the said cost before the trial court. Subject to the above condition, it is ordered that the impugned order dated 13.11.2013 passed by the Judicial First Class Magistrate Court, Irinjalakkuda, in C.C.No.2819/2011 will stand set aside and resultantly it is ordered that the complaint in C.C.No.2819/2011 will stand restored to the file of the trial court. The counsel for the appellant undertakes on behalf of the appellant/complainant that the complainant will file his proof affidavit in lieu of chief examination before the next day of appearance before the trial court. Accordingly, it is ordered that the counsel for the complainant, complainant, accused and the counsel for the accused shall appear before the trial court at 11:00 a.m on 30.12.2017, on which day in case the appellant produces receipt evidencing payment of cost, then the trial court shall proceed further with the matter in accordance with law. If on the other hand, the receipt regarding payment of cost is not produced by the appellant before the trial court, within the above said stipulated time, then the benefit of the direction given by this Court in this appeal will stand automatically vacated and the impugned acquittal order will stand

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Crl.A.No.1013 Of 2017

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revived. It is also ordered that the complainant shall by that day file his proof affidavit in lieu of chief examination as undertaken before this Court today.

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To a specific query raised to both sides as to whether the parties could be referred for mediation, learned counsel on both sides submit that their respective parties are willing to seek the option of mediatory efforts. Accordingly, it is ordered that on the above said of appearance, in case the appellant produce receipt evidencing the above said payment of cost, then the trial court shall refer the parties to the nearest mediation centre for resolution of the dispute. Time by 6 weeks is given to the the mediator to complete the mediation process. If the mediation process is successful and if the accused wants some more time for complying with the mediation agreement if any, and if the complainant is willing to grant such time, then the trial court should ensure that sufficient time as agreed between the parties should be given so as to assure proper effectuation of any such mediation agreement. If the mediation agreement is so successful, then the complainant would be at liberty to file appropriate application under Sec.257 of the Cr.P.C for withdrawal of the complaint or in the

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Crl.A.No.1013 Of 2017

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alternative, the parties would be at liberty to file joint application for compounding the offence under Sec.147 and 320 of the Cr.P.C. If on the other hand the mediation process turned out be failure, then the trial court shall proceed further with the matter on merits in accordance with law.

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With these observations and directions, the Criminal Appeal stands finally disposed of.

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Sd/-

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ALEXANDER THOMAS, Judge.

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Bkn/-

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// True copy //

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P. A to Judge

M/S.Assurance Kuries (P) Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S.Assurance Kuries (P) Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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