Cheque-bounce cases: Courts must give second chance if lawyer absent, says this State HC

Justice Mary Joseph issued the directive after considering petitions filed by the CauveryBuild Tech Private Ltd through advocate BH Mansoor. An order passed by Kalamassery judicial first class magistrate court on March 30th this year were challenged before the high court.

The petitioner had approached the JFCM court with applications to condone the delay in filing complaints to launch prosecution for cheque-default case under section 142 of Negotiable Instruments Act, 1881. The delay-condonation applications & the complaints were rejected by the JFCM court citing absence of complainant or lawyer when the case was called.

After considering the petitions challenging the JFCM court’s order, justice Mary Joseph said in the judgment, "The court concerned ought to have passed orders on merits in the petitions pending consideration. Rather than doing so, those were dismissed. The subordinate courts ought to have borne in mind that they are sitting not to curtail a party’s legitimate right to prosecute a case in a manner wrecking vengeance. In the case on hand, the court below ought to have granted a second chance for appearance of the complainant or his counsel."

The high court also pointed out that it was not a case where the lower court was in dark or was restrained from proceeding further due to the absence. Courts must be vigilant while denying the valuable right of a person to prosecute the case & that the absence of the counsel or the complainant may be due to a genuine reason, the high court said while noting that the complainant’s presence was not warranted in the case.

The JFCM court also failed in applying its mind to previous proceedings to see whether the complainant is a person vigilant in prosecuting his case, the high court said. Whether the character of the complainant is contumacious could only be discerned from the context of the case on previous occasions but the JFCM court’s order has no reference about it, the high court pointed out.

Granting one more opportunity to the complainant to prosecute his case on merits, the high court set aside the JFCM court’s order. Petitioner’s counsel told TOI that rejecting cheque-default cases citing absence of lawyer or complainant on the first hearing itself is a normal practice in lower courts, even though the complainant is not required to be present as he is represented by a lawyer instead.