IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3775 of 2007()
1. MAJITHA BEEVI, AMINA,
... Petitioner
Vs
1. THE SENIOR MANAGER,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.MANOJ R.NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/10/2007
O R D E R
V. RAMKUMAR , J
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CRL. R.P. NO. 3775 OF 2007
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Dated this the 22nd day of October, 2007.
ORDER
The revision petitioner, a Muslim lady is the accused in S.T. No.
1869/2007 on the file of the Judicial First Class Magistrate-IV (Mobile
Court), Thiruvananthapuram which is a prosecution for an offence
punishable under Section 138 of the Negotiable Instruments Act, 1881.
The cheque amount is Rs.51,564/- . The complaint was filed by the
Kerala State Co-Operative Bank, Thiruvananthapuram through its
Senior Manager. There was a dely of 17 days in filing the complaint.
Initially the Magistrate took cognizance of the offence without even
condoning the delay which resulted in the accused filing Crl. M.C No.
1752/2007 before this Court. This Court set aside the cognizance and
directed the court below to consider the question of delay after hearing
the accused as well. Thereafter, as per the impugned order dated
01.09.2007, the Magistrate has allowed C.M.P. No. 2027/2007 filed by
the complainant for condoning the aforesaid delay. The reason put
forward was that the counsel who filed the complaint was laid up. This
ground was opposed by the revision petitioner/accused contending
inter alia that the counsel had not even filed an affidavit before the
court and that the affidavit which was filed was that of the
CRL.R.P. NO. 3775/2007 : 2 :
complainant. However, the court below accepted the ground in
support of the delay and condoned the same.
2. The learned counsel for the revision petitioner submitted that
the observation in the impugned order that the petition to condone the
delay is moved by the very same counsel whose illness is projected as
a ground to condone the delay is factually wrong since the complaint
was filed by one Advocate Shri. Anil Kumar whereas the petition to
condone the delay was moved by another advocate named Shri.S.P.
Deepak .
3. Of course the expression “moved” if given its semantically
logical conclusion would only mean that it was argued and not filed.
But, the fact remains that the complaint as well as the petition to
condone the delay were filed by the counsel who was allegedly laid up
and there was a change of vakalath subsequently. In any view of the
matter, the court below has been indulgent enough to condone the
delay of 17 days in filing the said complaint on the ground of illness of
the counsel who filed the complaint on behalf of the complainant. I
see no ground to interfere with the condonation of the delay in filing
the complaint.
CRL.R.P. NO. 3775/2007 : 3 :
4. The learned counsel for the revision petitioner then submitted
that Annexure A4 receipt will show that as against the liability of
Rs.51,564/- due under the cheque in question , the revision petitioner
has discharged a sum of Rs.75,000/- and she being a Muslim woman
will be subjected to the ordeal of appearance before the court on all
the days of posting of S.T. No. 1869/2007. I do not think that in a
prosecution of this nature, the accused should appear before the court
on all the days of posting except when the case is actually taken up for
trial. The revision petitioner shall move the Magistrate under Section
317 Cr.P.C seeking exemption if and when such motion is made, I am
sure that the Magistrate shall be indulgent enough to exempt the
revision petitioner from appearing before that Court except when it is
absolutely necessary.
The Crl.R.P is disposed of accordingly.
V. RAMKUMAR, JUDGE.
rv
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