Kerala High Court
C.D.Bose vs Jayan & Another on 15 January, 2025
CRL.A NO. 2102 OF 2007
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
WEDNESDAY, THE 15
DAY OF JANUARY 2025 / 25TH POUSHA,
1946
CRL.A NO. 2102 OF 2007
Crl.L.P. NO.1029 OF 2007 OF HIGH COURT OF KERALA
ST NO.1155 OF 2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,
PALAKKAD
APPELLANT/PETITIONER/COMPLAINANT:
.D.BOSE,
C
PROPRIETOR,
CHEMMANNOOR FASHION JEWELRY,
G.B.ROAD, PALAKKAD.
BY ADV SRI.K.ANAND
RESPONDENT/ACCUSED AND STATE:
1
AYAN, S/O.V.A.KRISHNAN, VELUTHEDATH,
J
KUTTANKULANGARA LANE, POOKUNNAM P.O., TRICHUR.
2
TATE OF KERALA,
S
REPRESENTED BY PUBLIC PROSECUTOR.
CRL.A NO. 2102 OF 2007
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Y ADVS.
B
SAIJO HASSAN
BENOJ C AUGUSTIN(K/189/2004.)
RAFEEK. V.K.(K/134/2003)
ABRAHAM J. KANIYAMPADY(K/3280/2023)
SANGEETH MOHAN(K/3399/2023)
V.P.REJITHA(K/899/2001)
DHEERAJ BABY(K/002187/2023)
MEERA J. MENON(K/000860/2024)
OTHER PRESENT:
SR.PUBLIC PROSECUTOR-SRI.RENJIT GEORGE
HIS
T CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
15.01.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2102 OF 2007
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J U D G M E N T
This appeal is at the instance of the complainant in ST
No.1155of2006onthefileofJudicialMagistrateofFirstClass-I,
Palakkad, challenging acquittal of the accused under Section
256(1) of Cr.P.C.
2. Learned counsel for the appellant wouldsubmitthatthe
appellant/complainant is the Proprietor of Chemmanoor Fashion
Jewelry, Palakkad and since he was onabusinesstour,hecould
not appear before court to file the chief affidavit on time. The
amount duefromthe1strespondent/accusedwasRs.6,02,498/-
towards balance payment of gold ornaments purchased by him,
fromthejewelryshopoftheappellant.Thechequeissuedbythe
1st respondent/accused was dishonoured for the reason
'insufficient funds', and after complying with all the legal
formalities, the appellant/complainant filed the complaint under
Section138oftheNegotiableInstrumentsAct.Ifheisnotgiven
anopportunitytoprosecutehiscomplaintonmerits,itwillcause
irreparable loss and hardship to him. So he prayed for setting
asidetheimpugnedorderdated17.08.2007andtopermithimto
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prosecuteSTNo.1155of2006onthefileofJudicialMagistrateof
First Class-I, Palakkad.
3. Heard both sides.
4. Learned counsel for the 1st respondent would contend
that though several opportunities were given tothecomplainant
to file proof affidavit, it was not done. Though it was said from
the side of the complainant, that a power of attorney will be
executedbythecomplainanttoprosecutethecase,thatwasalso
not done. Only because ofthedeliberatelachesfromthesideof
the complainant in prosecuting ST No.1155 of 2006, the trial
court dismissed the complaint and acquitted the accused under
Section 256(1) of Cr.P.C. So that order is not liable to be set
aside.
5. Considering the averments that the cheque amount
involved is Rs.6,02,498, and it was issued towards balance
payment of gold ornaments purchased from the shop of the
complainant by the 1st respondent in the year 2006, it is a
mattertobedecidedonmerit.Truethat,threepostings,withina
period of one month, were given by the trial court for the
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complainant, to file the proof affidavit. But the affidavit wasnot
filed, and hence the complaint was dismissed, and the accused
was acquitted. Considering the stake involved, this Court is
inclined to afford one more opportunity to the
appellant/complainant to prosecute ST No.1155 of 2006. But it
shall be on cost of Rs.5,000/- to the 1st respondent/accused,
which shall be paid on or before 27.01.2025.
6.Accordingly,theimpugnedorderdated17.08.2007isset
asideoncostofRs.5,000/-tothe1strespondent/accused,tobe
paid on or before 27.01.2025.
7. The appellant/complainant and 1st respondent/accused
have to appear before the trial court on 10.02.2025. On
production ofproofofpaymentofcost,thetrialcourtisdirected
to take ST No.1155of2006backtofile.Thecomplainanthasto
adduce evidence within one month from the date of his
appearance before the trial court. On completing evidence from
both parties, the trial court has to dispose the case within a
period of six months from the date of appearance of the parties.
8. Registry to forward a copy of this judgment along with
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the Trial Court Records forthwith, for enabling the trial court to
comply with the directions. It is made clear that the trial court
need not send any fresh notice to the complainant or the
accused.Ifanyofthepartiesareabsenton10.02.2025,thetrial
court is at liberty to decide the case accordingly. Further, it is
made clear that this judgment would be of no avail, and the
impugnedorderwillsurviveifthecostamountasdirected,isnot
paid within time.
This appeal is disposed of accordingly.
Sd/-
SOPHY THOMAS
JUDGE
DSV/-
