Radhakrishnan Pillai vs Mr Shree Pazvelil @ Sresta ...
2021 Latest Caselaw 10003 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

    WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943

          CRL.A.No.1156 OF 2015(A) IN Crl.L.P.No.35/2013

    JUDGMENT IN CRA 35/2014 DATED 23-01-2015 OF III ADDITIONAL
                     DISTRICT COURT, THRISSUR

    Crl.L.P. 35/2013 DATED 13-02-2013 OF HIGH COURT OF KERALA


APPELLANT/COMPLAINANT:

             RADHAKRISHNAN PILLAI
             AGED 54 YEARS
             S/O. CHANDRASEKHARA PILLAI,
             PERMANENTLY RESIDING AT SETHUNIVAS, MHN 4,
             MALOOR NAGAR,
             VELLAYAMBALAM,
             NOW WORKING AND RESIDING AT 1045 BROOK VALLEY LANE,
             MCLEAN, VIRGINIA, U.S.A

             BY ADVS.
             SRI.K.RAMAKUMAR (SR.)
             SRI.S.M.PRASANTH
             SRI.C.DINESH
             SHRI.G.RENJITH
             SMT.AMMU CHARLES

RESPONDENT/ACCUSED & STATE:

      1      MR SHREE PAZVELIL @ SRESTA PRABHUDAS
             RADHAGOPALJI TEMPLE,
             GOPALJI TRUST,
             LEELA BHAJANALAYAM,
             N.P 408 MADHURAPURAM JUNCTION, ATHANI P.O,
             ERNAKULAM DISTRICT 683585
             (WRONGLY SHOWN BEFORE THE COURT BELOW AS
             VENUGOPALA SWAMIJI,PARAKKATTIL HOUSE,
             SUDARSANAM, KAPRASSERI, NEDUMBASSERY)

      2      STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
             KERALA,ERNAKULAM


             R2 BY PUBLIC PROSECUTOR
 CRL.A.No.1156 OF 2015
                                   2




                SR.PP - SRI. M.S.BREEZ

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.03.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.1156 OF 2015
                                      3




                              JUDGMENT

This is an appeal preferred under Section 378 (1) of the

Code of Criminal Procedure, hereinafter referred to as the

Cr.P.C., challenging the correctness of the order passed by the

learned Judicial First Class Magistrate, Chalakudy in

C.C.No.708/2009 dated 11.08.2011, by which the complaint

preferred alleging offence punishable under Section 138 of the

Negotiable Instruments Act, hereinafter referred to as the Act,

was dismissed and the accused was acquitted under Section 256

of the Cr.P.C. Challenging that order, earlier the appellant moved

an appeal before this Court, as Crl.A.No.246/2013. However,

basing on the decision reported in Shibu Joseph and others v.

Tomy K J and others in [2013 (4) KHC 629] the appeal

memorandum was returned by this Court to be presented before

the Sessions Court. Accordingly, the appeal was preferred before

the Sessions Court, Thrissur as Crl.A.No.35/2014. By the time CRL.A.No.1156 OF 2015

the Sessions Court had taken up the appeal, the decision in

Shibu Joseph, quoted supra, was overruled by this Court in

Omana Jose v. State of Kearala in [2014 (2) KLT 504]. The

dictum of the matter of decision is that an appeal against an

acquittal by the complainant will lie before the High Court and

not before the Sessions Court. On that ground, the learned

Sessions Judge returned the appeal memorandum to the

appellant and on that basis now the present appeal has been

preferred.

2. I heard the learned counsel for the appellant. It has come

out that both the appellant and the first respondent are presently

residing in United States. Notice could not be served on the first

respondent. On the basis of such a report the appellant has taken

out a paper publication and the publication has been produced

along with a memo.

3. The best policy of the court is to dispose of a case on

merits. From the contentions of the appellant, it seems that he CRL.A.No.1156 OF 2015

had been pursuing the matter vigilantly, but he could not turn up

on certain dates of posting either for making appearance himself

or to make his power of attorney holder representing him.

4. I have no doubt that, dismissal of a complaint under

Section 256 (1) of Cr.P.C is an extreme step. It should have been

taken as the last resort, which should have been taken only if it

was patently clear that the appellant was protracting the

proceedings willfully and with malicious intention. The learned

counsel for the appellant submits that due to personal

inconveniences and the fact that, at that time he was employed

abroad, he could not appear before the court and that the matter

was duly represented by his counsel.

5. The appellant had moved the trial court alleging offence

punishable under Section 138 of the Act on the plea that in

consideration of a debt of Rs.1.25 crore, the respondent had

issued him a cheque, which, on presentation dishonored due to

insufficiency of funds. Having regard to the high stake involved, CRL.A.No.1156 OF 2015

it is only in the interest of justice that the appellant is given one

more opportunity to prosecute the complaint.

6. Facilitating an adjudication on merits, the matter should

go back to the trial court once again. Therefore, setting aside the

order under challenge, dated 11.08.2011, the case is remanded to

the trial court.

Since it is a case of 2009, the appellant/complainant shall

take all out efforts facilitating early disposal of the complaint.

Appeal is allowed as above.

Sd/-

                                                      K.HARIPAL
                                                        JUDGE




      Jms/24.03

                                      //True Copy//     P.A To Judge