IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 105 of 2003()
1. VARGHESE S/O. CHOWALLUR CHERUNNI
... Petitioner
Vs
1. DESAN, S/O. INIPPULLY VASU MULLASSERY
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.RAJIT
For Respondent :SRI.K.ANAND
The Hon'ble MR. Justice V.K.MOHANAN
Dated :31/03/2009
O R D E R
V.K.MOHANAN, J.
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Crl.Appeal No.105 of 2003 - A
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Dated this the 31st day of March, 2009
J U D G M E N T
Challenging an order passed by the court below under
Section 256(1) of Cr.P.C, acquitting the accused in a prosecution
for offence punishable under Section 138 of the Negotiable
Instruments Act, the complainant preferred this appeal.
2. It is stated that there was no willful laches or
negligence from the part of the complainant in appearing before
the court below on the date of the impugned order, but he was
bitten by a mad dog and consequently, an application was filed
to excuse his absence on that day and the same was not
considered. Therefore, it is prayed that an opportunity may be
granted to the complainant to prosecute the complaint.
3. I have heard the learned counsel appearing for the
appellant as well as the respondent.
4. The case No.329/2000 is instituted upon a private
complaint preferred by the appellant for the offence punishable
under Section 138 of the Negotiable Instruments Act with the
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allegation that a cheque which issued by the accused for an
amount of Rs.27,000/- was dishonoured for want of sufficient
funds in the account of the accused. According to the appellant,
he was vigilantly prosecuting the complaint from the date of
cognizance. It is his further case that on 10.5.2002, when he
was going to the court to attend the case, he was bitten by a
mad dog and as a result of which he had undergone treatment
and the said fact was informed to his counsel. Consequently, his
counsel moved an application as M.P.No.7789/2002 to excuse his
absence wherein the above reason was shown. The learned
counsel for the appellant made available to me a certified copy of
the order. On a perusal of the said petition, it can be seen that
his absence was sought to be condoned on the above ground.
5. Going by the impugned order it can be seen that the
case was taken on file on 5.5.2000 and the accused entered
appearance on 3.2.2001. It is also discernible from the order
that the complainant has failed to appear before the court. Thus
the case was adjourned to 10.5.2002 as the last chance for the
appearance of the complainant for recording his evidence. On
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that day, the complainant is absent. Going by the above
reasoning of the court below, it appears that the learned
Magistrate has issued such an order as the case pertains to the
year 2000 wherein the date of offence is shown as early as on
1.3.1999. Therefore, it cannot be said that the order of the court
below is incorrect or illegal. However, it is brought to my notice
that the absence of the complainant was due to unavoidable
situation and hence arrangement was made by way of an
application to excuse his absence which was considered by the
court below, but rejected. It is not a case where there is no
representation at all, even though the complainant was absent.
The absence was also not willful, but due to the reason which is
beyond his control. It is also to be considered that the amount
involved is a sum of Rs.27,000/- and because of the impugned
order there is no decision on merit. Under the above
circumstances, I am of the view that an opportunity can be given
to the complainant to prosecute the complaint and to have a
decision on merit, but of course subject to terms.
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6. In the result, the judgment dated 10.5.2002 in case
No.329/2000 on the file of the Judicial First Class Magistrate
Court, Chavakkad is set aside, on condition that complainant
paying a sum of Rs.1,000/- to the court below, out of which
Rs.500/- shall be given to the accused and Rs.500/- shall be
deposited to the State exchequer.
7. Accordingly, this appeal is allowed directing the parties
to appear before the court below on 30.4.2009 on which date the
court below is directed to take the complaint and on satisfaction
regarding the payment of the amount as directed above, the
court is further directed to proceed with the complaint and
dispose of the same on merit, as expeditiously as possible, as the
case pertains to the year 2000.
V.K.MOHANAN,
JUDGE.
bkn/-