Mohan Bose v. D.Sajimon And Another
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 27TH DAY OF OCTOBER 2015/5TH KARTHIKA, 1937 CRL.A.No. 1420 of 2011 ( ) --------------------------- AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 680/2011 of HIGH COURT OF KERALA DATED 08-08-2011 AGAINST THE JUDGMENT IN ST 2208/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II(MOBILE),KOTTAYAM DATED 18-04-2009 PETITIONER/COMPLAINANT:
----------------------- MOHAN BOSE, VAZHAKULATHU HOUSE, PARIYARAM, KOTTAYAM.
BY ADV. SRI.M.J.THOMAS RESPONDENTS/ACCUSED AND STATE:
-----------------------------
1. D.SAJIMON, KINATTUKARA, NALUMNACKAL, VAKATHANAM, KOTTAYAM.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.MURALEEKRISHNAN R1 BY ADV. SMT.T.M.RESHMY BY ADV. PUBLIC PROSECUTOR: SMT M G LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SUNIL THOMAS, J.
============================== Crl.A.No.1420 of 2011 ============================== Dated this the 27th day of October, 2015
JUDGMENT
The complainant in S.T.No.2208 of 2008 of the Judicial First Class Magistrate Court-II (Mobile), Kottayam under Section 138 of the Negotiable Instruments Act is the appellant herein. The complaint was filed alleging that a cheque for a sum of Rs.60,000/- issued by the accused was dishonoured. After the appearance of the accused, the case was posted on several dates and ultimately posted to 18.04.2009. On that day, complainant was absent nor was he represented. Hence, the accused was acquitted by the learned magistrate by order dated 18.04.2009. This is assailed in this appeal.
2.
Notice was served on the first respondent who has appeared through the counsel. Though an offer for mediation was made, there appears to be no chance for mediation. Heard and examined the records.
3.
Learned counsel for the appellant submitted that the appellant has been diligently prosecuting the matter. However, on 18.04.2009, he was unable to attend the Court. During the night on 17.04.2009, petitioner had to take his child, a chronic blood patient
Crl.A.1420/11 to SAT, Thiruvananthapuram, due to sudden complication. The counsel was out of station and this matter was communicated to the advocate clerk of his counsel. Thereupon, it was informed that he was laid up due to chickenpox. Since he could not avoid journey to Thiruvananthapuram, he asked one of his friend to go to advocate clerk's office and arrange for an adjournment. However, no effective representation could be made on that day. Consequently, complaint happened to be dismissed.
4.
It is pertinent to note that the complainant was absent due to medical reasons of his son and it appears that the counsel was also not available. In the above circumstance, in the absence of the complainant, the court below cannot be found fault with passing an appropriate order. However, it is also to be noted that on the earlier postings, complainant was present. In fact on 06.03.2009, the complainant was present and the case was adjourned for the cross examination, due to the absence of the accused. On the next posting day of 17.03.2009 also, the complainant was absent and hence, the case was adjourned as last chance to 18.04.2009. 5.
Though, I am not fully satisfied with the explanation offered by the complainant, still, having regard to the fact that the complaint was filed in the year 2006 and the matter was prosecuted
Crl.A.1420/11 till 2009, I feel that one more opportunity can be granted to the complainant to contest the matter on merits.
In the result, the appeal is allowed. The impugned order is set aside and the matter is remanded to the court below for fresh consideration after giving a reasonable opportunity to the complainant to adduce evidence. Both sides shall appear before the court below on 14.12.2015.
Sd/- SUNIL THOMAS Judge Sbna True Copy / P.A to Judge