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.
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Crl.A.No. 42 of 2002 A
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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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