Partly allowed

Sree Gokulam Chit and Finance Co. [P] Ltd. v. Eugin Cletus

Kerala HC14 Nov 2017CRL.A/1169/2016

Case brief

AI extract

What is this about?

The High Court set aside the acquittal of the accused in a section 138 NI Act case. The appeal was admitted after the accused was duly served notice but failed to appear. Setting aside the lower court's order to dismiss the complaint for the complainant's non-appearance, the High Court ordered the complainant to pay costs to restore the case to the trial court for fresh trial.

What did the court decide?

The impugned judgment acquitting the accused was set aside and the complaint restored to the trial court for further proceedings, subject to the appellant paying a cost of Rs. 2,000 to the accused's c

Sree Gokulam Chit and Finance Co. [P] Ltd. Vs Eugin Cletus — 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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TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939

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CRL.A.No. 1169 of 2016 ()

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CC 246/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM.

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APPELLANT/COMPLAINANT:

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SREE GOKULAM CHIT AND FINANCE CO.[P] LTD., HAVING ITS CORPORATE OFFICE AT SREE GOKULAM TOWERS, NO.66, ARKOT ROAD, CHENNAI-24, REPRESENTED ITS PRESENT AUTHORISED REPRESENTATIVE & LEGAL CLERK, MR.P.PRAMOD, S/O.PARAMESWARA KURUP, AGED 43 YEARS, DIVISION OFFICE, KOLLAM.

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BY ADV. SRI.MAHESH V RAMAKRISHNAN

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RESPONDENTS/ACCUSED AND STATE:

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1. EUGIN CLETUS, S/O.CLETUS, VAZHAVILATHOTTAM, PADAPPAKKARA P.O., MULAVANA, KUNDARA, KOLLAM-691501.

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

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R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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ALEXANDER THOMAS, J.

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Crl.Appeal No. 1169 of 2016

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Dated this the 14^th day of November, 2017

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JUDGMENT

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The judgment under challenge in this appeal is the one rendered on 18.12.2014 by the Judicial First Class Magistrate Court-I, Kollam, whereby the accused in C.C.No.246/2009 has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, by virtue of the enabling powers conferred under Section 256(1) of Cr.P.C. The petitioner herein is the complainant and the 1^st respondent herein is the accused in the above said C.C.No.246/2009. Notice before admission was ordered by this Court on 21.11.2016, on which day notice was also issued to R1/accused by speed post. Now the registry has reported that notice sent by speed post to R1 has been duly ackowledged. Learned Public Prosecutor has taken notice for R2 and so service is complete. Accordingly, Crl.appeal is formerly admitted.

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Heard Sri.Mahesh V.Ramakrishnan, learned counsel appearing for the petitioner/complainant and Sri.Jestin Mathew, learned Public Prosecutor appearing for R2/State. As noted herein above, in spite of due service of notice on R1/accused, there is no appearance for that party.

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The impugned judgment dated 18.12.2014, which reads as

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follows:-

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This is a complaint filed under Section 138 of the Negotiable

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Crl.Appeal No. 1169 of 2016

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Instruments Act, 1881.

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2. On 06.12.2013 complainant filed proof affidavit in lieu of chief examination but at that time he did not produce the original cheque. Hence the examination adjourned, thereafter 10 times the case adjourned for evidence. On 18.12.2014 complainant absent and not even represented for him. As the complainant failed to appear for evidencing evidence, the complaint is dismissed under Section 256 of Cr.P.C.

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It is stated in the memorandum of appeal, that the learned Magistrate after taking cognizance, issued summons to the accused and later the accused had appeared and the particulars of the offence was read over to the accused and he pleaded not guilty. Subsequently the case was posted for evidence on the side of the complainant and the complainant had filed affidavit in lieu of chief examination on 06.12.2013. However, the original cheque could not be produced by the complainant. In the meanwhile, the complainant had filed a photocopy of the cheque, which was marked before the trial court. Subsequently the case was adjourned to 18.12.2014, directing the complainant to produce the original cheque. On 18.12.2014 the court below dismissed the complaint under Section 256 of Cr.P.C. on the ground that the complainant was neither present nor represented.

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It is now submitted by the learned counsel for the appellant that due to personal inconvenience, the appellant could not personally appear before the trial court on that day and an application is filed to condone his absence through his counsel. But the counsel could not reach the court in time when the case was called, which led to the

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Crl.Appeal No. 1169 of 2016

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impugned order. Further it is also submitted that the direction issued by the learned Magistrate to produce the original cheque to adduce evidence is legally not legally tenable and that this Court in Chitaranjan v. Jayarajan 2005 (1) KLT 790 has held that the premature discontinuance of the proceedings on the ground of non production of the original cheque denying opportunity to the complainant to adduce secondary evidence is certainly incorrect and improper.

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From a reading of the impugned judgment, it appears that the complainant was not personally present before the court at least on ten previous occasions. Therefore, this Court is inclined to consider the prayer made by the appellant only subject to payment of costs.

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Accordingly, the following directions and orders are passed:

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i. Petitioner shall pay cost of Rs.2,000/- (Rupees Two thousand only) in cash to the learned counsel appearing for the accused before the trial court within two weeks from the date of receipt of a certified copy of this order. Subject to payment of cost, it is ordered that the impugned judgment dated 18.12.2014 acquitting the accused will stand set aside, and resultantly, it is ordered that the complaint of the appellant in C.C.No.246/2009 will stand restored to the file of the trial court concerned.

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ii. The complainant and the counsel for the complainant shall appear before the trial court at 11 a.m. on 13.12.2017.

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iii.In case the appellant produces receipt evidencing payment of the above said cost, then the trial court proceed further in the complaint in accordance with law.

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iv. In the event that the petitioner does not produce any receipt evidencing of such cost, then it is ordered that the benefit of the above directions

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Crl.Appeal No. 1169 of 2016

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setting aside the impugned judgment will stand automatically vacated. In such circumstances, the impugned judgment dated 18.12.2014 will stand revived.

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v. As regards the contention of the petitioner regarding the permission to adduce secondary evidence regarding the allegedly lost original cheque based on the judgment of this Court in Chitaranjan's case (supra), it is only to be noted that the said issue is not a matter in issue in this Crl.appeal. The sole issue in this appeal is regarding the acquittal of the accused on account of the absence of the appellant on the day in question. Therefore, it is for the petitioner to raise appropriate contentions in that regard on the above said issue regarding the alleged lost of the original cheque and it is for the trial court to deal with the said aspects in accordance with law. All such issues are left open to be considered and decided before the trial court at the appropriate time.

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With these observations and directions, this Crl.Appeal stands

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finally disposed of.

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sd/- ALEXANDER THOMAS, JUDGE

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AMV/16/11/2017

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/TRUE COPY/ P.A.TO JUDGE

Sree Gokulam Chit and Finance Co. [P] Ltd. v. Eugin Cletus

Case brief

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Sree Gokulam Chit and Finance Co. [P] Ltd. v. Eugin Cletus

Case brief

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