Research › Search › Judgment

Kerala High Court · body

2003 DIGILAW 678 (KER)

Integrated Finance Co. v. State of Kerala

2003-10-30

R.BASANT

body2003
Judgment :- 1. The petitioner is the complainant in a prosecution under S.138 of the Negotiable Instruments Act. The complaint was filed by him as early as in 1998. Cognizance was taken by the learned Magistrate. The accused chose not to appear before the learned Magistrate. It is the case of the complainant that the accused was deliberately avoiding the process of the court. The court could not secure the presence of the accused. At an earlier stage, on the ground that the complainant was not present before court, the learned Magistrate dismissed the complaint under S.256(1) Cr.P.C. and acquitted the accused. That order of acquittal was challenged before this Court and by judgment dated 29.3.2001, in Crl. Appeal 828 of 1999, this Court allowed the appeal, set aside the order of acquittal and directed the learned Magistrate to continue with the proceedings. It is significant to note that the said judgment produced as Annexure-I shows that the accused was served at the address "Aiswarya, Kannammoola, Thiruvananthapuram" and had appeared before this Court in person. 2. The learned Magistrate received back the file and continued the proceedings. Though steps were taken, the accused did not appear even thereafter. Though notices were sent in his said address, he did not receive them. It is in these circumstances that the learned Magistrate proceeded to pass the impugned order - purportedly under S.258 Cr.P.C. According to the learned Magistrate, repeated process issued by the court were being returned unexecuted for the reason that the address was insufficient for execution. The learned Magistrate found fault with the complainant for not furnishing sufficient address to enable service of process on the accused. The learned Magistrate then felt that the case deserves to be closed. Fully conscious of the fact that S.258 of the Cr.P.C. cannot apply, the learned Magistrate chose to apply the principles under S.258 Cr.P.C. to the given situation. It is accordingly, that the proceedings were closed under S.258 Cr.P.C. 3. In this Cr1.M.C., notice was sent to the respondent/ accused in the very same address "Aiswarya, Kannammoola, Thiruvananthapuram". Notice has been served on him. He has not chosen to appear before court. 4. The learned counsel for the petitioner submits that the accused is engaged in the clever act of dodging notice issued by the court below. In this Cr1.M.C., notice was sent to the respondent/ accused in the very same address "Aiswarya, Kannammoola, Thiruvananthapuram". Notice has been served on him. He has not chosen to appear before court. 4. The learned counsel for the petitioner submits that the accused is engaged in the clever act of dodging notice issued by the court below. He is assisted and encouraged by police officials who choose to serve notice only when such notice is issued by this Court. When the learned Magistrate issue notice they are not served on the accused. The learned counsel for the petitioner in these circumstances contends that the premature closure of the proceedings has resulted in great injustice and prejudice to the accused. Powers under S.482 Cr.P.C. may be invoked to undo the injustice and prevent miscarriage of justice. 5. I am in agreement with the learned counsel for the petitioner. I am satisfied that the invocation of powers under S.258 Cr.P.C. by the learned Magistrate was totally unjustified. In the facts and circumstances of this case, I am convinced that the respondent/ accused is avoiding the long arms of law deliberately. I am satisfied in these circumstances that the learned Magistrate should leave no stone unturned to secure the presence of the respondent. 6. In the result, a) This petition is allowed. b) The impugned order is set aside. c) The learned Magistrate is directed to continue the proceedings and dispose of the case as expeditiously as possible. d) The petitioner/ complainant shall appear before the learned Magistrate on 24.11.2003 to continue the proceedings. e) The learned Magistrate shall issue non-bailable warrant of arrest against the respondent through higher officials of police, and ensure that the presence of the accused is secured forthwith. f) Report shall be made to this Court within a period of sixty days as to whether the presence of the accused has been secured or not. 7. A copy of this order shall be issued to the petitioner free of cost for production before the learned Magistrate on 24.11.2003. If there is non compliance the petitioner shall be at liberty to bring that fact to the notice of this Court.