Partly allowed

Anivarya Chits (P) Ltd. v. the State of Kerala

Kerala HC13 Nov 2017CRL.A/874/2017

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court of Kerala set aside an order of acquittal rendered under Section 256(1) Cr.P.C. for default by the complainant who was elderly and ill. The appeal allowed restoration of the complaint to the trial court subject to payment of costs by the complainant to the accused's counsel and appearance for filing the proof affidavit.

What did the court decide?

The impugned order of acquittal is set aside. The complaint is restored to the trial court. The complainant must pay Rs.2,000 as costs to the accused's counsel. The complainant must personally appear

Anivarya Chits (P) Ltd. Vs the 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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MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939

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CRL.A.No. 874 of 2017 ()

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STC.NO.24/2017 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 - 682 031.

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2. FASNA.K.P, W/O.ABDUL VAHID, "PRIME ROSE", NELLOONI, MATTANNUR POST, PIN - 670 702.

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R1 BY GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY R2 BY ADV. SMT.M.M.DEEPA

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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.874 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 order under challenge in this Appeal is the one rendered by the trial court concerned [Court of the Judicial First Class Magistrate Court-II, Kuthuparamba (Munsiff Kuthuparamba)], whereby the accused in S.T.C.No.24 of 2017 has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act by virtue of the enabling powers conferred under Section 256(1) of the Cr.P.C.

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The appellant herein is the complainant and the second respondent herein is the accused in the abovesaid S.T.C.No.24 of 2017. It is stated in the impugned order dated 11.5.2017 that the complainant has failed to appear and given evidence in spite of repeated directions. Accordingly, the accused was acquitted by virtue of the enabling powers conferred under Section 256(1) of the Cr.P.C. The impugned order of acquittal dated 11.5.2017 reads as follows :

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“This is a complaint filed under Section 190 of Cr.P.C. alleging commission of offence punishable under Section 138 of Negotiable Instruments Act. Complainant absent. Accused absent. Complainant has failed to appear and given evidence in spite of repeated directions. Hence complaint dismissed under Section 256 of Cr.P.C.”

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Heard Sri.A.V.James, learned counsel appearing for the

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Crl.A.874/17

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: :2::

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appellant/complainant and Smt.M.M.Deepa, learned counsel appearing for R2/accused and Sri.Saigi Jacob Palatty, learned prosecutor 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 11.5.2017 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 specific assertions anywhere in the complaint that the power of attorney holder is having direct knowledge

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Crl.A.874/17

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: :3::

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about the transactions in question which led to the liability as 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. 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.2,000/- (Rupees Two 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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Crl.A.874/17

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: :4::

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on which day the complainant shall produce receipt evidencing payment of cost of Rs.2,000/- 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. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Anivarya Chits (P) Ltd. v. the State of Kerala

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

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