IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1941 of 2006()
1. R.VASUDEVAN PILLAI,
... Petitioner
Vs
1. K.GOPA KUMAR,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.B.SURESH KUMAR
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. 1941 of 2006 - C
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Dated this the 6th day of October, 2008
J U D G M E N T
This appeal is filed at the instance of the
complainant in C.C.No.338 of 1995, on the file of the court
of the Munsiff Magistrate, Paravur, a case which was
instituted upon a private complaint for the offence
punishable under Section 138 of the Negotiable
Instruments Act. The court below acquitted the accused
by its order dated 25.9.1997 for the sole reason that the
complainant was not present either personally or through
his counsel. It is the above order, challenged in this
appeal.
2. In the complaint, the case of the appellant/
complainant is that towards the discharge of the liability of
Rs.60,000/- which was due to the complainant, the accused
had issued a cheque dated 9.1.1995. When the cheque
was presented for encashment, it was dishonoured for
want of sufficient fund. After the statutory formalities, the
complainant preferred the complaint, in spite of the
intimation regarding the dishonour of cheque and request
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for the payment of the amount. The sworn statement of
the complainant was recorded on 8.5.1995 and
cognizance was taken on 3.6.1995 and process was
issued to the accused. Subsequently, the case was
adjourned to various dates. On almost all the dates, the
complainant was present either in person or through his
pleader. It is also discernible from the averments
contained in paragraph 2 of the appeal memorandum
that since the accused did not appear in the court, non-
bailable warrant was issued and consequently, the
accused was arrested and produced and subsequently,
bail was granted to him. It is also discernible from the
factual averments that the case has been adjourned
because of non-sitting of the court and also it appears
that non-bailable warrant was issued against the
accused. It can also be seen that on the basis of the
judgment of the Supreme Court in common cause case,
the accused was acquitted, but subsequently, the case
was restored on the file on 31.3.1997. Because of the
absence of the accused, the court was constrained to
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issue coercive steps against the accused. It is also
stated that as the accused was absent on 21.8.1997, the
court below has directed to repeat the non-bailable
warrant to the accused on which date also the
complainant was present. But, according to the
appellant, on 25.9.1997, the complainant could not
appear in person and therefore, he had informed his
counsel about his inconvenience and requested the
counsel to make arrangements for filing an application
for exemption. It is also stated that because of the
traffic problem, counsel for the complainant could not
appear in court when the case was called on 25.9.1997
and hence, the court below passed the impugned order.
3. I have heard counsel for the appellant.
Though service of notice was effected on the first
respondent/accused, he had not chosen to appear in this
court to defend the appeal.
4. From the facts stated above, it appears to me
that the appellant/complainant is not a persistent
defaulter in appearing before the court and negligent in
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prosecuting the complaint. It is also clear from the facts
given in the appeal memorandum, which is not
controverted, that the complainant was present in the
court below on all occasions either by appearing himself
or through his pleader and even on the date of the
impugned order itself, the complainant had made
arrangements to make application for exemption from
his personal appearance, but his counsel could not reach
in the court in time and therefore, when the case was
called, there was no proper representation. It is also
discernible from the proceedings stated in the appeal
memorandum that when the case was adjourned to
21.8.1997, the presence of the accused was not
procured and hence, the court took coercive steps for
securing his presence and accordingly, the case was
adjourned to 25.9.1997 and therefore, the absence of
the complainant on 25.9.1997 has affected no way the
proceedings. It is not discernible from the impugned
order as to whether the accused was present on that
day. However, from the proceedings indicated above,
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the absence of the complainant is in no way affected the
proceedings of the court below and the court could have
granted opportunity to the complainant to prosecute the
complaint as he is a person who is diligently prosecuting
the complaint without any fault from his side.
Therefore, according to me, the impugned order of the
court below is not sustainable, especially in the light of
the decision of the Supreme Court reported in
Associated Cement Co.Ltd. v. Keshavanand [1998(1)
KLT 179 (SC)].
5. In the result, the appeal is allowed. The order
of the court below dated 25.9.1997 in C.C.No.338 of
1995 is set aside. The complainant is directed to appear
before the court below on 7th November, 2008 on
which date the court is directed to take the complaint on
file and to proceed in accordance with law and to
dispose of the same on merit.
V.K.Mohanan,
MBS/ Judge
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V.K.MOHANAN, J.
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Crl.A.NO. OF 200
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O R D E R
DATED: -9-2008
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