IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH OCTOBER, 2008 / 14TH ASWINA, 1930 CRL.A.No. 42 of 2002 - A (CC.588/1998 of JUDL. FIRST CLASS MAGISTRATE COURT-I, TRIVANDRUM) .................... APPELLANT/COMPLAINANT: ---------------------------------- KERALA EDUCATION DEVELOPMENT AND EMPLOYMENT SOCIETY (KEDES), SAKSHARATHA BHAVAN, T.C.24/1491, THIRUVANANTHAPURAM-14, REPRESENTED BY ITS SECRETARY AND DIRECTOR, N.BALAGOPAL, S/O LATE P.N.PANICKER. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH RESPONDENTS/ACCUSED/STATE: ----------------------------------------- 1. DR.G.SUBRAMANI, T.C.23/1128, VALIYASALAI, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 42 of 2002 A --------------------------------------------- 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 Crl.A. NO. 42 of 2002 :-2-: 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. Crl.A. NO. 42 of 2002 :-3-: 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, Crl.A. NO. 42 of 2002 :-4-: 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 Crl.A. NO. 42 of 2002 :-5-: 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 Crl.A. NO. 42 of 2002 :-6-: 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 7 th 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 Crl.A. NO. 42 of 2002 :-7-: 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/ Crl.A. NO. 42 of 2002 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. 42 OF 2002 -------------------------------------------- J U D G M E N T DATED: 6-10-2008 Crl.A. NO. 42 of 2002 :-9-: