Kerala High Court
S.D.Rajendran vs Alfred Alex on 21 May, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934
CRL.A.No. 2374 of 2007 ( )
--------------------------
(AGAINST THE ORDER IN CC.581/2005 of J.M.F.C.-IV, NEYYATTINKARA,
DTD.28.8.2006)
APPELLANT(S)/COMPLAINANT::
-------------------------
S.D.RAJENDRAN,
THAMILNADU ENGINEERING ENTERPRISES, NEXT TO
KAIMANAM SUPER MARKET, TRIVANDRUM-40.
BY ADV. SRI.G.SUDHEER
RESPONDENT(S)/ACCUSED & STATE::
-------------------------------
1. ALFRED ALEX,
MANAGER, CONVENT SCHOOL, JAGANATHAN STREET,
RAMAVARMAPURAM, NAGERCOIL-2, KANYAKUMARI DISTRICT,
TAMILNADU.
2. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SRI.P.M.SANEER, PUBLIC PROSECUTOR
BY ADV. SRI.PAUL MATHEW (PERUMPILLIL)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
21-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
----------------------------------------
Crl.A.No.2374 of 2007
----------------------------------------
Dated this the 21st day of May, 2012.
J U D G M E N T
The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant since he is aggrieved by the judgment dated 28.8.2006 in C.C.No.581 of 2005 of the court of Judicial First Class Magistrate-IV, Neyyattinkara, by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C.
2. Heard the counsel for the appellant. I have perused the judgment of the trial court impugned in this appeal.
3. The counsel for the appellant submits that the complainant was prosecuting the case effectively and he could not appear before the court on the date of the impugned order as he was laid up and hence an application 2 Crl.A.No.2374 of 2007 was filed to excuse his absence and hence one more opportunity may be given to the complainant to prosecute the matter. Whereas the learned counsel for the accused/ respondent submitted that the complainant was regularly absent and as discernible from the impugned order, the complainant was absent on 20.5.2006 as well as on 22.8.2006, prior to the date of the impugned order. So the complainant was negligent in prosecuting the matter and therefore no interference is warranted, learned counsel submits.
4. I have carefully considered the submissions of the learned counsel for the appellant and respondent and I have perused the impugned order. The fact beyond dispute is that the cheque in question covers an amount of `60,000/- and though the court has taken cognizance for the offence under section 138 of NI Act on the basis of the complaint preferred by the appellant connected with the dishonour of the above mentioned cheque, there is no decision on merit. 3 Crl.A.No.2374 of 2007 It is also discernible from the impugned order that, the complainant was represented on the date of the impugned order and an application was filed to excuse his absence. Therefore, it cannot be said that the complainant was negligent in appearing before the court below. But as correctly pointed out by the learned Magistrate, the details of the illness and the time required etc. were not mentioned in the petition. Having regard to the facts and circumstances involved in the case, according to me, it is only just and proper to grant one more opportunity to the complainant to prosecute the matter on merit, by incorporating appropriate terms, as there is lapse on the part of the complainant in appearing before the court below.
In the result, this appeal is disposed of setting aside the order dated 28.8.2006 in C.C.No.581 of 2005 of the court of Judicial First Class Magistrate-IV, Neyyattinkara, on condition that the appellant/complainant deposits a sum 4 Crl.A.No.2374 of 2007 of `3,000/- (Rupees Three Thousand only) within one month from today, in the trial court. Accordingly, the appellant is directed to appear before the trial court on 21.6.2012, on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the appellant/complainant depositing the amount as directed above, the learned Magistrate is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. It is made clear that if there is any failure on the part of the appellant either in appearing before the court on the date fixed for his appearance and depositing the above amount within the time stipulated above, this order will stand vacated and consequently this appeal will also stand dismissed. In case the appellant/complainant complies with the above direction, and on the appearance of the accused, a sum of `2,000/-, out of the above amount, shall be given to the accused and the remaining amount of `1,000/- shall be 5 Crl.A.No.2374 of 2007 deposited in the State Exchequer. As the case pertains to the year 2007, the learned Magistrate is directed to expedite the trial of the case as expeditiously as possible.
The Criminal Appeal is disposed of as above.
Sd/-
V.K.MOHANAN, JUDGE.
ami/-
//True copy// P.A. to Judge