IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 313 of 2008()
1. M.M.JOSEPH (DIED), MOOTHODATHU HOUSE,
... Petitioner
2. DILEEP J. MOOTHEDAM,
3. DENOY J. MOOTHEDAM,
4. DEEPTHY JAISON,
5. GRACY JOSEPH, D/O.M.M.JOSEPH,
Vs
1. RAMAN PILLAI, ARICHEZHIYIL HOUSE,
... Respondent
2. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.P.C.HARIDAS
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice R.BASANT
Dated :11/06/2008
O R D E R
R.BASANT, J
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Crl.Appeal. No.313 of 2008
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Dated this the 11th day of June, 2008
JUDGMENT
The appellants are the legal representatives of the deceased
complainant in a prosecution under Section 138 of the Negotiable
Instruments Act. The cheque is for an amount of Rs.40,000/-.
The complaint was filed in the year 2000 and the matter dragged
on till 2003. On 03.01.03, the complainant and the accused were
present in the court. The matter was posted for evidence or for
settlement as a last chance to 22.03.03. On 22.03.03, there was
no sitting and the case was adjourned to 28.03.03. On that day,
the complainant was absent. His counsel had filed an application,
it is submitted. But as the matter was posted for settlement or
evidence as a last chance to 22.03.03, the learned Magistrate
proceeded to dismiss the complaint and acquitted the accused
under Section 256(1) Cr.P.C.
2. The learned counsel for the appellants submits that the
complainant was not guilty of any contumacious laches. He was
laid up on 28.04.07. That is why he could not appear before the
court. Application to that effect was filed. The complainant, who
was sick, had later expired. That is why his legal heirs have now
Crl.Appeal. No.313 of 2008 2
preferred this appeal. It is prayed that the complainant/his legal
heirs may be given an opportunity to substantiate their complaint.
3. The prayer in the appeal is opposed by the counsel for
the respondent. But notwithstanding the opposition, I am
satisfied, in the facts and circumstances of this case, that the
complainant deserves to be granted a reasonable further
opportunity to substantiate his case. In coming to this conclusion
I need only mention that I have gone through the order sheet
maintained by the learned Magistrate and I do not find the
complainant guilty of any such contumacious or unpardonable
laches.
4. In the result:
i) This Criminal appeal is allowed;
ii) The impugned judgment of acquittal is set aside;
iii) The learned Magistrate is directed to dispose of the
complaint afresh in accordance with law.
5. The parties shall appear before the learned Magistrate
on 21.07.08 to continue the proceedings without waiting for any
further directions. The Registry shall send back records to the
court below forthwith such that the records reach the learned
Magistrate well prior to 21.07.08.
(R.BASANT, JUDGE)
rtr/-