Berger Paints India Ltd. v. Colour Links, Macsy Rebellow & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 CRL.A.No. 566 of 2007 --------------------- [AGAINST THE ORDER DTD.30.4.2005 IN ST.22/2005 of J.M.F.C.-IV, KOCHI] APPELLANT(S)/COMPLAINANT: ------------------------- M/S.BERGER PAINTS INDIA LTD., BERGER HOME, 1/29, PORT STREET KOLKOTTA, REP. BY ITS ADMINISTRATIVE OFFICER K.RAMOHAN. BY ADVS.SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR SRI.ASWIN GOPAKUMAR SRI.ANWIN GOPAKUMAR RESPONDENTS(S)/ACCUED AND STATE: -------------------------------- 1. M/S.COLOUR LINKS, PAINTS MERCHANTS, T.V.THOMAS MEMORIAL BUILDINGS, A.S.ROAD, ALLEPPEY. 2. MR.MACSY REBELLOW, M/S.COLOUR LINKS, PAINTS MERCHANTS T.V.THOMAS MEMORIAL BUILDINGS, A.S.ROAD, ALLEPPEY. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.ELIZABETH MATHAI IDICULLA BY ADV. SRI.MOHAN IDICULLA ABRAHAM BY ADV. SRI.RACHEL JOSEPH BY ADV. SRI.MARTIN D.ALUMKARA BY ADV. SMT.ELIZABETH MATHAI IDICULLA R3 BY PUBLIC PROSECUTOR SRI.P.M.SANEER. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 566 of 2007 - A ----------------------------------------** Dated this the 12[th] day of June, 2012 ## **J U D G M E N T** The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 30.4.2005 in S.T.No.22 of 2005 of the court of the Judicial First Class Magistrate-IV, Kochi by which the learned Magistrate acquitted the accused under Section 256(1) of Cr.P.C.. 2. Heard counsel for the appellant as well as the respondents. 3. Learned counsel for the appellant submitted that in fact, originally, the complaint was filed in the court of the Chief Judicial Magistrate, Ernakulam wherein cognizance was taken and subsequently, the case was transferred to the present trial court. It is the further submission of the learned counsel that arrangement was made to represent the counsel for the appellant/complainant in the trial court and accordingly, the complainant has appeared in the Crl.A.No. 566 of 2007 :-2-: Judicial First Class Magistrate Court-II, Kochi on 18.1.2005, but on that date, the case was not called in that court. It is subsequently came to know that actually the case was transferred to the court of Judicial First Class Magistrate - IV, Kochi, but in the meanwhile the case was disposed of by the trial court on 30.4.2005. Learned counsel submitted that as the cheque in question covers an amount of `10,327/-, one more opportunity may be given to the complainant to prosecute the matter on merit. Counsel for the respondents submitted that though the appeal was adjourned to find out the possibility of settlement, there is no scope for any settlement. 4. I have carefully considered the submissions made by learned counsel for the appellant as well as the respondents. 5. Though learned counsel for the appellant submitted about the posting of the case on 18.1.2005 and about the appearance of the complainant etc. in the court of the Judicial First Class Magistrate -II on 18.1.2005, from the impugned order, it appears that though in the Crl.A.No. 566 of 2007 :-3-: trial court, the case was posted on 18.1.2005, it was adjourned to 9.3.2005 as there was no representation on 18.1.2005. From the order, it is also discernible that again the case was adjourned to 27.4.2005, from 9.3.2005. Again the case was adjourned to the date of the impugned order from 27.4.2005, but on that day also there was no representation for the complainant and the complainant was absent. From the above oder, it appears that the learned Magistrate was forced to issue the impugned order as there was no representation for the complainant and the complainant was not present. But, it is relevant to note that though the court has taken cognizance for the offence punishable under Section 138 of the N.I.Act on the basis of the complaint preferred by the appellant connected with the dishonour of cheque for `.10,327/-, there is no decision on merit. It appears that connected with the transfer of cases from the courts at Ernakulam to the court at Kochi, several incidents were reported regarding the disposal of case under Section 256(1) of the Cr.P.C. either due to the Crl.A.No. 566 of 2007 :-4-: absence of the complainant or for non-representation and the same were due to the failure in taking proper precautionary steps and due to communication gap. In this juncture, it is relevant to note that this v. Court, in the decision reported in **Alice George Deputy Superintendent of Police** [2003(1) KLT 339], issued certain guidelines to be followed by the trial court during the trial of the cases pending before it. It has been held that insistence on personal presence of the accused and the complainant on all dates of posting irrespective of nature and purpose could not be permitted or tolerated. In the above circumstances, according to me, it is only just and proper to grant one more opportunity to the appellant to prosecute the matter on merit. In the result, this appeal is disposed of setting aside the order dated 30.4.2005 of the court of the Judicial First Class Magistrate-IV, Kochi in S.T.No.22 of 2005. Accordingly, the appellant/ complainant is directed to appear before the trial court on **12.07.2012** on which Crl.A.No. 566 of 2007 :-5-: date, the learned Magistrate is directed to restore the complaint on file and proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. As the case pertains to the year 2005, the learned Magistrate is directed to expedite the trial and dispose of the case as expeditiously as possible. This Criminal Appeal is disposed of as above. **V.K.MOHANAN,Judge.** MBS/ Crl.A.No. 566 of 2007 :-6-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 **JUDGMENT** Crl.A.No. 566 of 2007 :-7-: Dated:11.11.2011