IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 47 of 2009()
1. JACOB JOSEPH,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
2. A.J.THOMAS, AREECHIRA HOUSE, ETTUMANOOR
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :SRI.LIJI.J.VADAKEDOM
The Hon'ble MR. Justice V.K.MOHANAN
Dated :23/03/2009
O R D E R
V.K.MOHANAN, J.
----------------------------------------------
CRL.A. No.47 of 2009
----------------------------------------------
Dated, 23rd March, 2009.
JUDGMENT
This appeal is at the instance of the complainant in a
prosecution for the ofence punishable under section 138 of the
Negotiable Instruments Act. The learned counsel submitted that due
to mistake committed by the Clerk of the counsel for the complainant
in the trial court in noting down the date of posting of the case,
neither the complainant nor his counsel appeared before the court
below and, consequently, the impugned order was passed acquitting
the accused under section 256(1) Cr.P.C. It is submitted that there
is no fining on merit and therefore an opportunity be given to the
complainant to prosecute the complaint.
2. I have heard the learned counsel appearing for the
appellant and also the counsel for the 2nd respondent/accused.
3. From the records, it appears that the complainant
approached the court of Chief Judicial Magistrate, Kottayam, by
preferring a complaint for prosecuting the accused/respondent for
an offence under section 138 of the N.I.Act, as the cheque in
question issued by the accused for an amount of Rs.2 lakhs was
dishonourd for want of sufficient funds. On the basis of the said
CRL.A.47 OF 2009
-:2:-
allegation, the sworn statement in C.C.89/2004 was taken in that
court, but subsequently it was transferred to the Court of Judicial First
Class Magistrate-I. Again the case was transferred to the JFCM-II,
Ettumanoor. It is also discernible from the materials that when the
case was transferred to the present court, there was a specific
direction that the parties shall appear before the present court on
18.7.2008. According to the learned counsel for the appellant herein,
the clerk of the counsel in the lower court was specifically directed to
verify the register of the court and ascertain whether a new number
was given or not and also to take down the proceedings and the
posting date and thus the clerk of the counsel verified the records
frequently, but according to the counsel, without assigning any new
number, the matter was taken by calling the old number and hence,
the clerk could not note down the proceedings, consequently, on the
date of posting of the case neither the counsel nor the complainant
could appear before the court below.
4. I am not satisfied with the explanation offered. It is an
admitted fact that when the case was transferred from the court of
Judicial First Class Magistrate-I, Ettumanoor to Judicial First Class
Magistrate-II, Ettumanoor, there was specific direction to the effect
that all the parties should appear before the latter court on
CRL.A.47 OF 2009
-:3:-
18.7.2008. The proceedings sheet of the court below is not
available.
5. In the light of the direction given by the former court, it is for
the complainant to appear before the latter court on 18.7.2008. But
on that day neither the complainant nor his counsel was present. On
subsequent posting dates also there was no appearance. The above
fact is clear from the order itself. Therefore, I find no reason to hold
that the Magistrate is wrong in passing the order under section 256(1)
Cr.P.C. However, it is a fact that the cheque in question involved is
for an amount Rs.2 lakhs and there is no decision on merit. The lame
excuse shown in the appeal memo cannot be acted upon since the
same will affect the complainant. Therefore, I am of the view that
one more opportunity can be given to the complainant to prosecute
the complaint, but subject to terms.
In the result, the appellant/complainant is directed to pay a sum
of Rs.1000/- to the accused and a further sum of Rs.1000/- to
be deposited in the court as costs. Accordingly, the order dated
8.8.2008 in S.T.1277/2007 is set aside and the parties are directed to
appear before the court below on 23.4.2009 on which day the court is
directed to take up the complaint, and on satisfaction that the
complainant paid Rs.1000/- to the accused and deposited a sum of
CRL.A.47 OF 2009
-:4:-
Rs.1000/- in the court below which shall be paid to the State
Exchequer, the court shall proceed with the complaint and to
dispose of the same on merit.
V.K.MOHANAN, JUDGE
kvm/-
CRL.A.47 OF 2009
-:5:-
V.K.MOHANAN, J.
No….
Judgment/Order
Dated: