Kalpetta Janakshema Maruthi Chits (P) Ltd. v. Roshan C.K. & The State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2012-02-14
Court Decision / Holding: Appeal disposed of: order of acquittal under Section 256(1) CrPC set aside; matter to be restored on file; appellant to deposit Rs. 1,500 in the trial court within one month; on deposit and appearance, trial to be conducted on merit and disposed expeditiously; failure to deposit or appear will result in dismissal; entire deposit to be deposited with the State Exchequer.
Final Disposition: Appeal disposed of; acquittal set aside; trial to be restored with conditions; deposit required; failure to comply may dismiss the case; expedited trial.**

Parties to the Case

Appellants / Petitioners

M/S Kalpetta Janakshema Maruthi Chits (P) Ltd, Branch Office, Sarala Complex, Vatakara

Respondents

Roshan C.K.
The State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Srinath Girish
• Sri E. Narayanan

Counsels for Respondents

• Public Prosecutor, SMT. T.Y. Laliza

Case Synopsis & Summary

This is a Criminal Appeal under Section 138 of the Negotiable Instruments Act, 1881, challenging an acquittal recorded by the Judicial First Class Magistrate, Vatakara, under Section 256(1) CrPC. The complainant, a cheque-dishonor case for Rs. 40,112, contends that the proceedings and representation were mishandled: the counsel arranged for representation on 19.7.2008 did not appear in the trial, and the court did not communicate the proceedings to the Kozhikode counsel. The B-diary shows the accused had not appeared and his plea was not recorded, suggesting laches on the part of the complainant. Relying on a decision in Alice George (2003) 1 KLT 339, the High Court held that the Magistrate ought not to have acquitted under 256(1) CrPC and noted laches, suggesting the remedy could be under Section 204 CrPC, with conditions. In consequence, the appeal is disposed of: the order of acquittal is set aside, and the appellant is directed to deposit Rs. 1,500 in the trial court within one month, so that the complaint is restored and trial proceeds on merits. If the deposit or appearance fails, the appeal stands dismissed; the sum is to be deposited in the State Exchequer, and the matter is to be expedited."

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881Section 256(1) CrPCSection 204 CrPC

Legal Doctrines & Maxims

Doctrine of laches in prosecuting a case; where there is laches, acquittal under Section 256(1) CrPC may be inappropriate and the remedy may lie under Section 204 CrPC; possibility of granting a limited opportunity to prosecute on terms.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that non-communication of proceedings to the Kozhikode counsel and the absence of his appearance would have prevented the case from progressing to merit; laches on the part of the complainant warrants a reconsideration of the acquittal. Citing Alice George (2003) 1 KLT 339, the appellant seeks to set aside the acquittal and restore the matter for merit with proper conditions, including a monetary deposit and expeditious trial.

Contentions of Respondents

Not elaborated in the judgment; the text primarily records the appellant's submissions and the court's reasoning on laches and the remedy under 204 CrPC.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Alice George	2003(1) KLT 339	Positive	Cited to support that acquittal under 256(1) CrPC ought not to be upheld; court relies on the precedent to reverse acquittal and consider merit-based proceedings.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933 CRL.A.No. 2683 of 2008 ( ) -------------------------(AGAINST THE ORDER DTD.23.7.2008 IN STNO.1972/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT, VATAKARA) APPELLANT(S)/LEAVE PETITIONER/COMPLAINANT: ----------------------------------------- M/S KALPETTA JANAKSHEMA MARUTHI CHITS (P)LTD, BRANCH OFFICE, SARALA COMPLEX VATAKARA, REPRESENTED BY SENIOR MANAGER SRI.M.MADHUSOODHANAN. BY ADVS.SRI.SRINATH GIRISH SRI.E.NARAYANAN RESPONDENTS(S)/ACCUSED AND STATE: -------------------------------- 1. ROSHAN C.K, S/O.RAMACHANDRAN, - "KRISHNAN DEEPTHI", NEAR HEAD POST OFFICE, VATAKARA. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.A.No. 2683 of 2008** **----------------------------------------** Dated this the 14[th] day of February, 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 of acquittal recorded by the trial court under Section 256(1) of the Code of Criminal Procedure. 2. Counsel for the appellants submitted that the complaint in the court of the Judicial First Class Magistrate, Vatakara was filed through Advocate, who is regularly practising in Kozhikode, and the said counsel made arrangements to represent the complainant as well as himself in the trial court on 19.7.2008, but the said counsel did not appear before the court below and the proceedings of the court below dated 19.7.2008 is not communicated to the counsel at Kozhikode and it was under the above circumstances, the impugned order was passed by the learned Magistrate. I am not satisfied with the above Crl.A.No.2683 of 2008 :-2-: explanation. To prove the correctness of the above submission, no materials are also produced. The name of the counsel with whom the arrangement was made by the counsel for the complainant from Kozhikode to represent the complainant as well as his counsel on 19.7.2008 is also not mentioned. However, it appears that the court below has already taken cognizance for the offence punishable under Section 138 of the N.I.Act based upon the complaint preferred by the appellant connected with the dishonour of cheque which covers an amount of Rs.40,112/-, but there is no decision on merit. From the 'B' diary proceedings of the court below, it appears that the accused has not so far appeared before the court below and his plea is not recorded. Therefore, according to me, even if the complainant or his counsel is present for trial, there would not have been any fruitful turn out. Hence, according to me, in the light of the decision of this v. Court reported in **Alice George Deputy Superintendent of Police** [2003(1) KLT 339], the learned Magistrate ought not have acquitted the accused under Section 256(1) of the Cr.P.C. It is also discernible Crl.A.No.2683 of 2008 :-3-: from the 'B' diary proceedings that there were laches on the part of the complainant in taking steps to secure the presence of the accused and in that case also, the order ought to have been passed not under Section 256(1) of the Cr.P.C. but under Section 204 of Cr.PC. Therefore, the order of the court below cannot be approved. Thus, according to me, one more opportunity may be given to the appellant/complainant to prosecute the matter on merit, but such opportunity can be given only on terms since there are laches and negligence on the part of the complainant in prosecuting the matter effectively. In the result, this appeal is disposed of setting aside the order dated 23.7.2008 of the court of the Judicial First Class Magistrate, Vatakara in S.T.No.1972/2007 on condition that the appellant/ complainant deposits a sum of ` **.1500/-** (Rupees One Thousand Five Hundred only) in the trial court within one month from today. Accordingly, the appellant/complainant is directed to appear before the trial court on **14.03.2012** on which date, the learned Magistrate is Crl.A.No.2683 of 2008 :-4-: directed to restore the complaint on file and on his satisfaction that the appellant/complainant deposits a sum of `.1500/- (Rupees One Thousand Five Hundred only) in the court below as directed above, he is further directed to proceed with the trial of the case in accordance with the procedure and law and dispose of the same on merit. The entire amount of `.1500/- shall be deposited in the State Exchequer. It is made clear that if there is any failure on the part of the appellant either in depositing the amount mentioned above within the time or in appearing before the court below on the date fixed for his appearance, this order will stand vacated and consequently, the above appeal will stand dismissed. In case the appellant/complainant complies with the above direction and proceed with the inquiry and trial of the case, the learned Magistrate is directed to expedite the proceedings and dispose of the case as expeditiously as possible as the case pertains to the year 2007. This Criminal Appeal is disposed of as above. MBS/ **V.K.MOHANAN,Judge.** Crl.A.No.2683 of 2008 :-5-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 Crl.A.No.2683 of 2008 :-6-: ## **JUDGMENT** Dated:11.11.2011 Crl.A.No.2683 of 2008 :-7-: **V.K.MOHANAN, Judge** MBS/ **V.K.MOHANAN, J** . Crl.A.No.2683 of 2008 :-8-: CRL.A.No. 434 OF 2003 ## **JUDGMENT** Dated:11.11.2011 Crl.A.No.2683 of 2008 :-9-: