Vijayan Vs. State of Kerala

Vijayan vs State of Kerala

Disposition Petition allowed Court Kerala Decided Feb 18, 2005

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Citation: sooperkanoon.com/720246
Court: Kerala High Court
Judge: M. Sasidharan Nambiar, J.
Decided On: Feb 18, 2005
Case Number: Crl. R.P. No. 257 of 2005
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- - Learned counsel would submit that failure to take steps in all the case was due to the mistake in his office and the complainant may not be asked to suffer the consequences. It cannot be said that a complainant would purposely fail to take steps in a complaint filed under Section 142 of N.

Key legal issue: Criminal
Outcome / disposition: Petition allowed
Acts & sections: Negotiable Instruments Act, 1881 - Sections 138 and 142

Parties & Advocates

Appellant / Petitioner

Vijayan

Advocate Sasthamangalam S. Ajithkumar,; Krishnadas P. Nair, ; P

Respondent

State of Kerala

Advocate K.J. George, Public Prosecutor

Legal References

Acts: Negotiable Instruments Act, 1881 - Sections 138 and 142
Reported In: III(2005)BC480; 2000CriLJ1199; 2005(2)KLT344

Excerpt

- - learned counsel would submit that failure to take steps in all the case was due to the mistake in his office and the complainant may not be asked to suffer the consequences. it cannot be said that a complainant would purposely fail to take steps in a complaint filed under section 142 of n......though complainant was absent. learned counsel appearing for petitioner contended that accused has no right to be heard before cognizance of the offence was taken. argument is that as delay has to be condoned before taking cognizance, accused cannot be heard at the pre-cognizance stage. i cannot agree with the submission. in a complaint filed for the offence under section 138 of n.i. act, it may not be proper to deny opportunity to the accused to defend the case on the ground of delay which would be available to him. if the argument of the learned counsel appearing for the revision petitioner is to be upheld that opportunity would be lost to the accused. it cannot be the intention of the legislature in enacting the amended section 142. even though the delay in filing the complaint can be condoned, it is not automatic. learned counsel would submit that failure to take steps in all the case was due to the mistake in his office and the complainant may not be asked to suffer the consequences. it cannot be said that a complainant would purposely fail to take steps in a complaint filed under section 142 of n.i. act. interest of justice warrants an opportunity to be granted.2. revisions are allowed. impugned orders passed by the learned magistrate dismissing the respective petitions are set aside. c.m.p. nos. 2628/04, 2631/04, 2629/04 and 2630/04 are restored back to file. revision petitioner is directed to take steps within ten days from this date. court below to proceed with the proceedings in accordance with law.

Full Judgment

ORDER

M. Sasidharan Nambiar, J.

1. Complainant in C.M.P. Nos. 2628/04, 2631/04, 2629/04 and 2630/04 is the revision petitioner. Respective petitions were filed to condone delay in lodging complaint. The complaint was filed under Section 138 of N.I. Act. All petitions were dismissed by the Court below as per separate orders on the ground that petitioner was absent and no steps were taken to issue notice to accused. It is seen from the order itself that revision petitioner was represented by a counsel though complainant was absent. Learned counsel appearing for petitioner contended that accused has no right to be heard before cognizance of the offence was taken. Argument is that as delay has to be condoned before taking cognizance, accused cannot be heard at the pre-cognizance stage. I cannot agree with the submission. In a complaint filed for the offence under Section 138 of N.I. Act, it may not be proper to deny opportunity to the accused to defend the case on the ground of delay which would be available to him. If the argument of the learned counsel appearing for the revision petitioner is to be upheld that opportunity would be lost to the accused. It cannot be the intention of the Legislature in enacting the amended Section 142. Even though the delay in filing the complaint can be condoned, it is not automatic. Learned counsel would submit that failure to take steps in all the case was due to the mistake in his office and the complainant may not be asked to suffer the consequences. It cannot be said that a complainant would purposely fail to take steps in a complaint filed under Section 142 of N.I. Act. Interest of justice warrants an opportunity to be granted.

2. Revisions are allowed. Impugned orders passed by the learned Magistrate dismissing the respective petitions are set aside. C.M.P. Nos. 2628/04, 2631/04, 2629/04 and 2630/04 are restored back to file. Revision petitioner is directed to take steps within ten days from this date. Court below to proceed with the proceedings in accordance with law.

Same Court & Year Kerala · 2005 Same Parties Vijayan vs State of Kerala Same Subject Criminal Same Judge M. Sasidharan Nambiar, J. Acts & Sections Negotiable Instruments Act, 1881 - Sections 138 and 142

Criminal