High Court Kerala High Court

Kerala Education Development And vs Dr.G.Subramani on 6 October, 2008

Kerala High Court
Kerala Education Development And vs Dr.G.Subramani on 6 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 42 of 2002()


1. KERALA EDUCATION DEVELOPMENT AND
                      ...  Petitioner

                        Vs



1. DR.G.SUBRAMANI, T.C.23/1128,VALIYASALAI,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY PUBLIC

                For Petitioner  :SRI.T.M.CHANDRAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.K.MOHANAN

 Dated :06/10/2008

 O R D E R
                     V.K.MOHANAN, J.
           ---------------------------------------------
                  Crl.A.No. 42 of 2002 A
           ---------------------------------------------
          Dated this the 6th day of October, 2008

                      J U D G M E N T

This appeal arose at the instance of the

complainant in C.C.No.588 of 1998, on the file of the

Judicial First Class Magistrate Court-I,

Thiruvananthapuram, a case instituted upon a private

complaint for the offence punishable under Section 138 of

the Negotiable Instruments Act.

2. The complainant is a society. The first

respondent/accused had issued a cheque dated 17.6.1998

for an amount of Rs.53,346.55 towards the discharge of

certain liability to the appellant/complainant. It is the

further case of the complainant that when the above

cheque was presented for encashment, the same was

returned with an endorsement ‘funds insufficient’ and at

the instance of the complainant, a lawyer notice was sent

intimating dishonour of cheque and demanding payment of

the amount. It is also the case of the complainant that in

spite of the said demand, no amount was paid and

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therefore, a complaint under Section 138 of the N.I.Act

was preferred in the court below and the court below

took cognizance and instituted C.C.No.588 of 1998. On

the appearance of the accused, particulars were read

over to him to which he pleaded not guilty and the case

was being adjourned for evidence. According to the

appellant/complainant, on 20.12.2000, when the case

was called, the complainant could not appear as he had

gone to New Delhi and though arrangement was made

for making application for exemption from his personal

appearance and though counsel for the appellant had

made application for the same, the court below, in spite

of the above application, acquitted the accused under

Section 256(1) of the Code of Criminal Procedure. It is

the above order, challenged in this appeal.

3. I have heard learned counsel for the

appellant. Though notice was served on the first

respondent/accused, he had not chosen to defend the

appeal.

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4. The learned counsel for the appellant

submits that there is no willful laches or negligence on

the part of the complainant in prosecuting the complaint

and one more opportunity may be given to the

complainant to prosecute the complaint.

5. I have considered the submission made by

counsel for the appellant and also perused the impugned

order. From the impugned order, it appears that when

the case was ripe for evidence and as a last chance, it

stood for consideration on 16.12.2000, the complainant

was absent, though there was a specific direction to him

to be present on that day. On 16.12.2000, an application

was filed for and on behalf of the complainant to excuse

his absence on the ground that he had gone to

Kozhikode for official purposes. After allowing that

petition, the case was again adjourned to 20.12.2000

with a specific direction to the complainant to be

present on the next posting date, i.e. on 20.12.2000 on

which date the impugned order was passed. On

20.12.2000 also, the complainant was absent. Of course,

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an application for exemption was filed through the

counsel. But the court below acquitted the accused

under Section 256(1) of the Cr.P.C. observing that from

the conduct of the complainant, it is clear that he is not

diligent in prosecuting the case.

6. On a perusal of the order, it can be seen that

the alleged date of offence is 14.7.1998 and the

complaint is dated 7.8.1998. It appears that the sworn

statement of the complainant was recorded on

5.10.1998. Accordingly, cognizance was taken. From

the above factual position, it appears that the case is an

old one and case was ripe for evidence also. It is also

clear from the impugned order that the case was

originally stood posted for evidence on 16.12.2000, on

which date also there was a direction to the complainant

to be present and to adduce evidence. But, in spite of

that direction, the complainant was not present on

16.12.2000. However, by application at the instance of

the complainant, the case was again adjourned and

posted to 20.12.2000 for evidence and on this occasion

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also, a specific direction was given to the complainant to

be present on that day. But, in spite of such direction,

the complainant did not appear and adduce evidence on

20.12.2000. It was, in these circumstances, the court

below passed the impugned order. From the above

dates and the proceedings of the court below, I am of

the view that this Court cannot find any fault with the

order passed by the court below. But, the fact remains

that the allegation in the complaint is with respect to the

dishonour of cheque for an amount of Rs.53,346.55 and

there is no decision on merit regarding the allegation in

the complaint. It is also relevant to note that the

complainant is a society and concerned with the funds

which belong to its members. Therefore, I am of the

view that an opportunity can be given to the

complainant to prosecute the complaint, but only on

terms of cost. It is relevant to note that on the date on

which the impugned order was passed, there was an

application for his personal exemption as he had gone to

Delhi for official purposes. It is also relevant to note

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that even though on 16.12.2000, the complainant was

absent , his absence was also due to official reason.

Therefore, it cannot be held that the complainant was

persistently negligent in appearing before the court

below and prosecuting the complaint. However, there

was a specific direction to the complainant to be present

on 16.12.2000 as well as on 20.12.2000. Thus,

considering the entire facts and circumstances and

totality of the matter, I am of the view that one more

chance can be given to be complainant to prosecute the

complaint.

7. In the result, this appeal is allowed on

condition that the complainant shall deposit a sum of

Rs.3000/- (Rupees three thousand only) in the court

below. The complainant is directed to appear before the

court below on 7th November, 2008 on which date the

court is directed to take up the complaint on file and on

satisfaction of the payment of the amount as directed in

this order, the court below is further directed to issue

process to the accused and thereafter, to proceed with

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the complaint in accordance with law and to dispose of

the same on merit. The court below is further directed

to make arrangements for depositing the above amount

into the State Exchequer.

V.K.Mohanan,
Judge

MBS/

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V.K.MOHANAN, J.

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Crl.A.NO. 42 OF 2002

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J U D G M E N T

DATED: 6-10-2008

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