Kerala High Court
M/S. Desai Papers vs Jose Immanuel on 16 February, 2024
Author: K.Babu
Bench: K. Babu
Crl.A No.141 of 2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
CRL.A NO. 141 OF 2023
AGAINST THE JUDGMENT IN CC 4471/2017 OF JMFC (NI ACT CASES),
ERNAKULAM
APPELLANT:
M/S. DESAI PAPERS
67/9631 A5, FIRST FLOOR, D.D. VASTRA MAHAL, MARKET
ROAD, KOCHI-682011 REPRESENTED BY IT'S POWER OF
ATTORNEY HOLDER AND SENIOR MANGER MR. JINU GEORGE,
S/O LATE M V GEORGE, AGED 46, D D VASTHRAMAHAL,
MARKET ROAD, COCHIN, PIN - 682011
BY ADV SHIJU VARGHESE
RESPONDENTS:
1 JOSE IMMANUEL
CHERRY'S PRINTERS, L.F.C. ROAD,
KALOOR, KOCHI, PIN - 682017
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY ADVS.
Julian Xavier.J Joseph
FIROZ K.ROBIN(F-15)
ROY JOSEPH(K/55/2006)
ANIES MATHEW(K/952/2007)
ANJANA RAM(K/000695/2020)
NIRMAL KURIEN EAPEN(K/000151/2022)
R1 BY SRI.G.SUDHEER-PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.141 of 2023 2
K.BABU, J
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Crl.A No.141 of 2023
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Dated this the 16th day of February, 2024
J U D G M E N T
The challenge in this appeal is to the judgment dated 18.6.2022,
acquitting the accused, in C.C.No.4471/2017 passed by the Judicial First
Class Magistrate Court (N.I Act Cases), Ernakulam under Section 256(1)
of Cr.P.C.
2. The appellant is the complainant. The complainant filed a
complaint against the accused alleging the offence punishable under
Section 138 of the Negotiable Instruments Act before the Judicial First
Class Magistrate Court (N.I Act Cases), Ernakulam. The complainant
alleged that the accused executed two cheques for Rs.1,00,000/-. The
complainant presented the cheques for encashment. The cheques were
dishonoured due to insufficiency of funds. The complainant caused to
issue lawyer's notice. The accused received the notice, but refused to pay
the amount covered by the cheques.
3. The complainant filed the complaint before the jurisdictional
Magistrate on 8.11.2017. The Court took cognizance of the offence and
issued summons to the accused. On 16.3.2022 the accused appeared. On
18.6.2022 as the complainant was not represented, the learned Magistrate
acquitted the accused under Section 256 of Cr.P.C.
4. I have heard the learned counsel for the complainant and
the learned counsel appearing for the accused.
5. The learned counsel for the complainant submitted that the
complainant remained absent only on 18.6.2022 and he has been
diligently prosecuting the case since 2017. It is further submitted that the
complainant was affected with viral fever and underwent RTPCR test and
he had submitted an application seeking exemption before the Court. It is
further submitted that the complainant tested positive for Covid-19 and
he was incapacitated to appear before the Court on 18.6.2022.
6. I have gone through the proceedings of the Trial Court. The
complainant filed a complaint in 2017. The case stood adjourned on
different occasions by notifications and it was after five years the
presence of the accused was procured. The proceeding paper reflects that
the complainant was represented on all dates except on 18.6.2022.
7. It is evident from the materials placed before the Court that
the complainant has been diligently prosecuting the matter. He happened
to be absent on 18.6.2022 as he tested positive for Covid-19 and he was
undergoing treatment.
8. Having considered the entire materials, I am of the view the
judgment impugned is liable to be set aside.
9. In the result, the judgment dated 18.6.2022, acquitting the
accused stands set aside. C.C.No.4471/017 is restored to file. The Trial
Court is directed to proceed with the matter as expeditiously as possible.
Both parties are directed to appear before the Trial Court on 11.3.2024.
The Crl.Appeal is allowed as above.
Sd/-
K.BABU
JUDGE
ab
