Chandran v. K.Gopi & Another
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS FRIDAY, THE 4TH DAY OF DECEMBER 2015/13TH AGRAHAYANA, 1937 CRL.A.No. 539 of 2011 ( ) -------------------------- AGAINST THE ORDER IN Crl.L.P. 212/2011 of HIGH COURT OF KERALA DATED 21-03-2011 AGAINST THE ORDER IN ST 36/2009 of JUDICIAL FIRST CLASS MAGISTRATE-II, VADAKARA DATED 27-01-2010 APPELLANT/COMPLAINANT:
---------------------- CHANDRAN P., S/o.CHANDHU, AGED 52 YEARS, RESIDING AT CHERIYA KUNNUMMEL HOUSE, P.O.CHORODE PIN-673106, CHORODE VILLAGE, VATAKARA TALUK.
BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENTS/ACCUSED & STATE:
---------------------------
1. K.GOPI, S/O.CHANTHU, AGED 49 YEARS, RESIDING AT KOROTH HOUSE, CHERUSSERY ROAD, P.O.PUTHUR PIN-673104, NADAKKUTHANA VILLAGE, PUTHUR DESOM VATAKARA TALUK.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.V.V.SURESH R1 BY ADV. SRI.C.BHASKARAN R2 BY PUBLIC PROSECUTOR: SMT. M G LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SUNIL THOMAS, J.
============================== Crl.A.No.539 of 2011 ============================== Dated this the 04th day of December, 2015
JUDGMENT
This appeal arises from the order dated 27.01.2010 of the Judicial First Class Magistrate-II, Vadakara in a proceeding under Section 138 of the Negotiable Instruments Act. The complainant is the appellant. It arose from the dishonour of a cheque for a sum of Rs.60,000/-. Pursuant to the summons issued in the case, the accused appeared and the case was being adjourned thereafter. Ultimately, it was posted to 27.01.2010. On that day, the complainant and his counsel were absent. The court below noted that there was a specific direction to the complainant to be present for evidence. Consequently, complaint was dismissed and the accused was acquitted under Section 256(1) of Cr.P.C. The complainant has come up in appeal. 2.
Heard both sides and perused the records.
3.
Learned counsel for the appellant contended that the case was posted as a last chance and that, neither the counsel nor the complainant was present on that day. The absence was attributed to the fact that the matter was entrusted to a junior
Crl.A.539/11 counsel, who could not make an effective representation. The absence of the party on that day is also not satisfactorily explained. Hence, the court below cannot be found fault with, for having passed an order within its jurisdictional limits. 4.
However, the complaint was laid in the year 2008. It appears that it was transferred to the present Court in 2009 and renumbered. Till it was dismissed in January 2010, the complainant has been prosecuting it diligently. Taking into consideration that fact, I feel that interest of justice demands one more opportunity to be granted to the appellant to prosecute his matter. Impugned order is, hence, liable to be set aside. In the result, the appeal is allowed. The impugned order is set aside and the matter is remanded to the court below to enable the complainant to prosecute his matter. Both sides shall appear before the court below on 18.01.2016.
Sd/- SUNIL THOMAS Judge Sbna True Copy / P.A to Judge