Partly allowed

Anivarya Chits (P) Ltd., Rep.by Power of Attorney Holder C.M.Govindan Nambiar v. the State of Kerala

Kerala HC13 Nov 2017CRL.A/873/2017

Case brief

AI extract

What is this about?

This court dismissed the appeal against the acquittal of the accused in a cheque bouncing case. The trial court acquitted the accused as the complainant failed to adduce evidence. The court remanded the matter, setting aside the acquittal, subject to the complainant paying costs to the defense counsel.

What did the court decide?

The impugned order of acquittal was set aside and the complaint was restored to the file of the trial court, subject to the complainant paying costs.

Anivarya Chits (P) Ltd., Rep.by Power of Attorney Holder… — 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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MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939

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CRL.A.No. 873 of 2017 ()

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ST.NO.23/2017 OF JUDICIAL MAGISTRATE FIRST CLASS COURT - II, KUTHUPARAMBA (MUNSIFF KUTHUPARAMBA).

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APPELLANT/COMPLAINANT:

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ANIVARYA CHITS (P) LTD., REP.BY POWER OF ATTORNEY HOLDER C.M.GOVINDAN NAMBIAR, S/O.KUNJHIRAMAN NAIR, AGED 72 YEARS, CHANGADATH HOUSE, THARUVANA POST, WAYANAD DISTRICT.

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BY ADV. SRI.A.V.JAMES

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RESPONDENTS/ACCUSED:

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

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2. ROBART ARACKAL, S/O.GEORGE, ARACKAL HOUSE, CHEMPANTHOTTY POST, PIN-670631.

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R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY R2 BY ADV. SRI.A.C.VENUGOPAL

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2017, 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.873 of 2017

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----------------------------------------Dated this the 13^th day of November, 2017

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JUDGMENT

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The judgment under challenge in this Criminal Appeal is the one rendered by the trial court concerned (Judicial First Class Magistrate Court No.II, Kuthuparamba) whereby the accused in S.T.No.23 of 2017 has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act as on the ground that the complainant has failed to adduce evidence in this case. The appellant herein is the complainant and the second respondent herein is the accused in the abovesaid S.T.No.23 of 2017. It is stated in the impugned judgment dated 10.5.2017 that the complainant did not adduce any evidence in spite of repeated directions and that on 4.5.2017 the case was posted for evidence as last chance and on that day though the complainant appeared he did not choose to adduce any evidence and hence evidence was closed and accordingly, as the complainant had not adduced any evidence, the accused was acquitted by virtue of the enabling powers conferred under Section 255(1) of the Cr.P.C.

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Heard Sri.A.V.James, learned counsel appearing for the appellant/complainant, Sri.A.C.Venugopal, learned counsel appearing for R2/accused and Sri.Saigi Jacob Palatty, learned prosecutor

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Crl.A.873/17

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: :2::

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appearing for R1/State.

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The complaint has been preferred by the power of attorney holder of the original complainant. The appellant has stated in paragraph 4 of the memorandum of this Criminal Appeal that he is an elderly man of the age of 72 years and that his wife is under treatment for cancer for the past several years in the Regional Cancer Centre Hospital, Thiruvananthapuram, and that he was in the hospital for several months. In view of these aspects, he could not take effective steps for adducing evidence and when the case was posted on 4.5.2017 as last chance though he was present on that day he was not in a position to adduce evidence due to his mental and physical strains. The said aspect was duly represented by the counsel for the appellant who was appearing for the appellant before the trial court. But the trial court did not accept the request for adjournment. The prayer in this appeal is opposed by the counsel appearing for the accused saying that inspite of several opportunities, the appellant power of attorney has not taken any steps so as to adduce evidence. Further it is stated by the accused that the complaint which is filed through a power of attorney is not maintainable inasmuch as there are no specific assertions anywhere in the complaint that the power of attorney holder is having direct knowledge about the transactions in question which led to the liability as

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: :3::

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Crl.A.873/17

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well as about the aspects relating to the execution and issuance of the dishonoured cheque and that in view this ground alone, the complaint is liable to be drawn out as not maintainable, etc. This Court is not now in a position to consider such a contention raised by the accused.

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Learned counsel for the appellant/complainant would submit that he is not having copy of the medical certificate evidencing the cancer treatment undergone by the appellant's wife and that this Court may take a lenient view in the matter. Having regard to the fact that many opportunities were given by the trial court to the appellant, this Court feels that the matter could be remitted to the trial court only subject to payment of cost by the complainant.

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Accordingly, it is ordered that the complainant shall pay cost of Rs.3,000/- (Rupees Three Thousand only) to the learned counsel appearing for the accused before the trial court within two weeks from the date notified for receiving a certified copy of this judgment. Subject to this condition, it is ordered that the impugned order is set aside and resultantly, it is also ordered that the complaint of the appellant will stand restored to the file of the trial court concerned. But this order is subject to the petitioner paying cost to the counsel for the accused as directed herein above. The complainant and the counsel for the complainant shall personally appear before the trial court at 11 A.M. on 16.12.2017

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: :4::

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Crl.A.873/17

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on which day the complainant shall produce receipt evidencing payment of cost of Rs.3,000/- to the learned counsel for the accused appearing before the trial court concerned. It is also ordered that on that day the complainant if he wants to adduce evidence should file his proof affidavit in lieu of chief examination and a copy of the same should also be given to the learned counsel appearing for the accused in advance. If the complainant produces receipt evidencing payment of cost to the learned counsel appearing for the accused on the abovesaid day, then the trial court shall proceed further with the complaint in accordance with law. If on the other hand, the complainant does not pay the cost as directed herein above, then the benefit of these directions given in this judgment will stand automatically vacated without any further orders from this Court and in which case the impugned judgment of acquittal rendered by the trial court will stand restored.

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

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ALEXANDER THOMAS JUDGE

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csl

Anivarya Chits (P) Ltd., Rep.by Power of Attorney Holder C.M.Govindan Nambiar v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Anivarya Chits (P) Ltd., Rep.by Power of Attorney Holder C.M.Govindan Nambiar v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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