R. Vasudevan Pillai v. K. Gopa Kumar and The State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 **CRL.A.No. 1941 of 2006 (C)** (CC.338/1995 of MUNSIFF-MAGISTRATE COURT, PARAVOOR) .................... ## APPELLANT/COMPLAINANT: ---------------------------------- R.VASUDEVAN PILLAI, KARTHIKA, MEENADU, NEDUNGOLAM P.O., KOLLAM. BY ADV. SRI.B.SURESH KUMAR ## RESPONDENTS/ACCUSED AND THE STATE: ----------------------------------------------------- 1. K.GOPA KUMAR, PUTHEN VEEDU, MEENAD, NEDUNGOLAM P.O., KOLLAM. ## 2. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **--------------------------------------------Crl.A.No. 1941 of 2006 - C --------------------------------------------Dated this the 6[th] day of October, 2008** ## **J U D G M E N T** This appeal is filed at the instance of the complainant in C.C.No.338 of 1995, on the file of the court of the Munsiff Magistrate, Paravur, a case which was instituted upon a private complaint for the offence punishable under Section 138 of the Negotiable Instruments Act. The court below acquitted the accused by its order dated 25.9.1997 for the sole reason that the complainant was not present either personally or through his counsel. It is the above order, challenged in this appeal. 2. In the complaint, the case of the appellant/ complainant is that towards the discharge of the liability of Rs.60,000/- which was due to the complainant, the accused had issued a cheque dated 9.1.1995. When the cheque was presented for encashment, it was dishonoured for want of sufficient fund. After the statutory formalities, the complainant preferred the complaint, in spite of the intimation regarding the dishonour of cheque and request ## **Crl.Appeal NO.1941 of 2006** ## **:-2-:** for the payment of the amount. The sworn statement of the complainant was recorded on 8.5.1995 and cognizance was taken on 3.6.1995 and process was issued to the accused. Subsequently, the case was adjourned to various dates. On almost all the dates, the complainant was present either in person or through his pleader. It is also discernible from the averments contained in paragraph 2 of the appeal memorandum that since the accused did not appear in the court, nonbailable warrant was issued and consequently, the accused was arrested and produced and subsequently, bail was granted to him. It is also discernible from the factual averments that the case has been adjourned because of non-sitting of the court and also it appears that non-bailable warrant was issued against the accused. It can also be seen that on the basis of the judgment of the Supreme Court in common cause case, the accused was acquitted, but subsequently, the case was restored on the file on 31.3.1997. Because of the absence of the accused, the court was constrained to ## **Crl.Appeal NO.1941 of 2006** ## **:-3-:** issue coercive steps against the accused. It is also stated that as the accused was absent on 21.8.1997, the court below has directed to repeat the non-bailable warrant to the accused on which date also the complainant was present. But, according to the appellant, on 25.9.1997, the complainant could not appear in person and therefore, he had informed his counsel about his inconvenience and requested the counsel to make arrangements for filing an application for exemption. It is also stated that because of the traffic problem, counsel for the complainant could not appear in court when the case was called on 25.9.1997 and hence, the court below passed the impugned order. 3. I have heard counsel for the appellant. Though service of notice was effected on the first respondent/accused, he had not chosen to appear in this court to defend the appeal. 4. From the facts stated above, it appears to me that the appellant/complainant is not a persistent defaulter in appearing before the court and negligent in ## **Crl.Appeal NO.1941 of 2006** ## **:-4-:** prosecuting the complaint. It is also clear from the facts given in the appeal memorandum, which is not controverted, that the complainant was present in the court below on all occasions either by appearing himself or through his pleader and even on the date of the impugned order itself, the complainant had made arrangements to make application for exemption from his personal appearance, but his counsel could not reach in the court in time and therefore, when the case was called, there was no proper representation. It is also discernible from the proceedings stated in the appeal memorandum that when the case was adjourned to 21.8.1997, the presence of the accused was not procured and hence, the court took coercive steps for securing his presence and accordingly, the case was adjourned to 25.9.1997 and therefore, the absence of the complainant on 25.9.1997 has affected no way the proceedings. It is not discernible from the impugned order as to whether the accused was present on that day. However, from the proceedings indicated above, ## **Crl.Appeal NO.1941 of 2006** ## **:-5-:** the absence of the complainant is in no way affected the proceedings of the court below and the court could have granted opportunity to the complainant to prosecute the complaint as he is a person who is diligently prosecuting the complaint without any fault from his side. Therefore, according to me, the impugned order of the court below is not sustainable, especially in the light of the decision of the Supreme Court reported in **Associated Cement Co.Ltd.** v. **Keshavanand** [1998(1) KLT 179 (SC)]. 5. In the result, the appeal is allowed. The order of the court below dated 25.9.1997 in C.C.No.338 of 1995 is set aside. The complainant is directed to appear before the court below on **7[th] November, 2008** on which date the court is directed to take the complaint on file and to proceed in accordance with law and to dispose of the same on merit. MBS/ **V.K.Mohanan, Judge** ## **Crl.Appeal NO.1941 of 2006** **:-6-:** **V.K.MOHANAN, J.** -------------------------------------------- Crl.A.NO. OF 200 -------------------------------------------- **Crl.Appeal NO.1941 of 2006** **:-7-:** O R D E R DATED: -9-2008 ## **Crl.Appeal NO.1941 of 2006** **:-8-:**