IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 CRL.A.No. 1392 of 2011() ------------------------ CC.1232/2006 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... APPELLANTS: APPELLANTS/COUNTER PETITIONERS -------------------------------------------- 1. JAYAKUMAR,PROPRIETOR,POWER TECH INDUSTRIAL TRADERS,SIVA VILASAM,KATTANAM, PALLICKAL PO, ALAPPUZHA. 2. SIVANKUTTY NAIR,S/O.VASUDEVAN NAIR, SIVA VILASAM,KATTANAM VILLAGE,MAVELIKKARA. 3. GOPALAN NAIR,S/O.RAGHAVAN NAIR, AYIKKUNNATHU VEEDU,MAVELIKKARA. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT: PETITIONER ------------------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI K.S. SIVAKUMAR. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A. No. 1392 of 2011 ---------------------------------------- Dated the 5th day of August, 2011 JUDGMENT This appeal is preferred by the accused and sureties in C.C.No.1232 of 2002, which is a case instituted upon a private complaint for the offence punishable under section 138 of the Negotiable Instruments Act. 2. The order under challenge in this appeal is Annexure A3, by which, under section 446 Cr.P.C, the learned Magistrate after forfeiting the bond, imposed a penalty of Rs.10,000/- on each of the appellants and also ordered that, in the event of failure to pay penalty amount or its recovery, they shall be detained in civil prison for two months and also ordered to take steps to recover the penalty amount. As the appeal was filed belatedly, Crl.M.A.No.6319/2011 was filed to condone the delay and the reasons stated in the affidavit in support of the above petition is to the effect that, as the matter was settled out of court, the complainant has filed a petition under section 257 Cr.P.C in the trial court to withdraw the complaint which was CRL.A.No.1392 of 2011 2 allowed and the accused was acquitted and therefore they never anticipated a proceedings under section 446 Cr.P.C and they came to know about the proceedings only on receiving Annexure A4 notice. During the consideration of the above delay petition, this court by order dated 4.8.2011, directed the registry to obtain the remarks of the Magistrate concerned as to under what circumstances, the order like the impugned one was passed by the learned Magistrate. Accordingly, it is reported that, proceedings under section 446 Cr.P.C was initiated and proceeded due to mistake. On the above reason, the delay was condoned. 3. In the light of the order passed by the learned Magistrate vide Annexure A2 order dated 30.6.2006 in C.C.No.1232/2002, the above Calendar Case was disposed of allowing the complainant to withdraw the complaint and acquitting the accused. It is thereafter the impugned order, i.e. Annexure A3 was issued on 21.2.2007 by the learned Magistrate in M.C.No.14/2006 in C.C.No.1232/2006. The Presiding Officer of the court of Chief Judicial Magistrate, Ernakulam, has reported that the proceedings under section 446 Cr.P.C and the CRL.A.No.1392 of 2011 3 order thereon was passed mistakenly. In the light of the above report of the Presiding Officer of the trial court, for the mistake committed by the court, the parties to the impugned proceedings shall not be penalised and proceeded and hence, according to me, this appeal is to be allowed setting aside Annexure A3 order. In the result, this appeal is allowed setting aside Annexure A3 order, i.e Order dated 21.2.2007 in M.C.No.14/2006 in C.C.No.1232/2002 of the court of Chief Judicial Magistrate, Ernakulam and all further proceedings are also set aside. V.K.MOHANAN, JUDGE kvm/- CRL.A.No.1392 of 2011 4