Kerala High Court
Sajan.S Aged 40 Years vs The State Of Kerala on 26 November, 2013
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 10TH DAY OF JANUARY 2014/20TH POUSHA, 1935
Crl.Rev.Pet.No. 62 of 2014 ()
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ST 2603/2009 of JUDICIAL FIRST CLASS MAGISTRATE -I,
PATHANAMTHITTA DATED 26-11-2013
REVISION PETITIONER(S)/COMPLAINANT:
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SAJAN.S AGED 40 YEARS
OTTAPLAMOOTTIL HOUSE, PARIYARAM P.O.,
ELANTHOOR VILLAGE
PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.S.SHANAVAS KHAN
SMT.S.INDU
RESPONDENTS/STATE & ACCUSED :
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
2. BIJU GOPINATHAN NAIR
S/O. GOPINATHAN NAIR, RADHAKRISHNASADANAM, KADAKKAD
PANDALAM P.O., PATHANAMTHITTA DISTRICT.
R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 10-01-2014, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
stu
K.HARILAL, J.
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Crl.R.P.No.62 of 2014
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Dated this the 10th day of January, 2014
O R D E R
The revision petitioner is the complainant in S.T.No.2603 of 2009 on the files of the Judicial First Class Magistrate's Court - I, Pathanamthitta. The offence alleged against the 2nd respondent/accused is under Sec. 138 of the Negotiable Instruments Act. The complaint was filed on 14/09/2009. The learned Magistrate took cognizance of the offence and issued process. Even though the accused entered appearance through counsel and applied for time and granted. Subsequently, he was found absent continuously. So, coercive steps were ordered to secure his presence on 05/04/2013 and the case was posted to 12/07/2013. On 12/07/2013, the complainant was absent and there was no representation for the complainant. Subsequently, the case was posted to 19/07/2013 and 26/11/2013 also. On those days also, neither the Crl.R.P.No.62 of 2014 2 complainant nor the counsel appearing for the complainant was present before the court. Besides, no steps were taken to secure the presence of the accused. On that premises, the court below dismissed the complaint for non- prosecution under Sec.204 of the Code of Criminal Procedure and this order is under challenge in this revision petition.
2. The learned counsel for the revision petitioner submits that the complainant was regularly appearing before the court through counsel except on one occasion. According to him, steps were taken on 24/07/2013 and the matter was adjourned to 26/11/2013. But, admitted that, on 26/11/2013, neither the complainant nor the counsel was present before the court.
3. Going by the proceedings, it could be seen that neither the complainant nor the counsel for the complainant was present on the day when the complaint was dismissed for non-prosecution. So, I am unable to find fault with the court below for dismissing the complaint for non- Crl.R.P.No.62 of 2014 3 prosecution under 204 of the Code of Criminal Procedure. But, at the same time, I am inclined to take a lenient view in a different perspective.
4. The prosecution under Sec. 138 of the N.I.Act is almost of the nature of a civil wrong which has been given criminal overtone, and the loss sustained by the complainant by the dishonour of the cheque can be restored by way of compensation. Thus, the compensatory aspect of remedy should be given much priority over punitive aspect. If the revision petitioner is deprived of his right to prosecute the accused, certainly, the complainant will be put in great loss and hardship. In the above view, the petitioner can be given another opportunity to prosecute the accused diligently.
5. Consequently, the impugned order under challenge will stand set aside on condition that the revision petitioner shall pay a cost of 1,500/- to the court below and on payment of cost, the court below shall restore the complaint on the files and proceed in accordance with law. Needless Crl.R.P.No.62 of 2014 4 to say, in the event of failure, the impugned order will stand in force.
This revision petition is allowed accordingly.
K.HARILAL, JUDGE.
Stu //True copy// P.A to Judge