In an appeal against acquittal under Section 256 Cr.P.C. regarding a dishonoured cheque case, the High Court set aside the trial court's order as a mechanical acquittal resulting from a clerical error in the court calendar. The matter was remanded to the trial court for a fresh trial.
Impugned order of acquittal set aside and matter remanded to the trial court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE J.B.KOSHY
WEDNESDAY, THE 21ST FEBRUARY 2007 / 2ND PHALGUNA 1928
CRL.A.No. 97 of 2000()
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ST.2255/1996 of JUDL. MAGISTRTE OF FIRST CLASS COURT-III, THRISSUR DT. 17.12.99.
APPELLANT: COMPLAINANT
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MANSOOR, S/O.PANIKKAVEETTIL MANNIYAL, PROPRIETOR, KENZ ENTERPRISES, THATHA BUILDING , M.G.ROAD, THRISSUR 4.
BY ADV. SRI.SUNNY MATHEW
RESPONDENTS: ACCUSED & STATE
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1. K.B.JAYAKRISHNAN, PROPRIETOR, JAYKAY GROUPS, KALAKKATTU HOUSE, THANNITHODU P.O., THANTHODU, PATHANAMTHITTA DISTRICT.
2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSHKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J.B.KOSHY, J.
Crl. Appeal No. 97 of 2000
Dated this the 21st day of February, 2007
Judgment
This appeal is filed by the complainant against
acquittal of the accused under section 256 of the Code of Criminal Procedure. The complaint was filed alleging dishonour of cheque given by first respondent for insufficiency of funds. The respondent/accused did not appear before the court even though the court granted several times for the appearance of the accused. On 25.8.1997, non-bailable warrant was issued against the accused which was repeated on 17.10.1997, 17.1.1998 and 13.5.1998 and a fresh non-bailable warrant was issued on 19.3.1999. Again, notice was issued to the Sub Inspector of Police on 6.7.1999 and summons was issued to the Village Officer on 5.8.1999 and in spite of this, presence of the accused could not be secured. On 14.9.1999 steps were taken under section 299 of the Code of Criminal Procedure. Finally, appellant was informed that the case was posted to 27.12.1999. On 27.12.1999, appellant and his counsel were present in court, but, the case was not called. On enquiry, it was revealed that the case was actually posted on 17.12.1999 and the accused was acquitted on that day.
Crl.A.No. 97/2000 2
The appellant and his counsel could not attend the court on 17.12.1999 only because the clerk noted the date of posting as 27.12.1999 instead of 17.12.1999. The impugned order is a stereo-typed order without application of mind. Even though accused can be acquitted under section 256 Cr.P.C. for the absence of the complainant, it should not be done mechanically. On the facts and circumstances of the case, the impugned order is set aside and the matter is remanded.
The complainant shall appear before the trial court on 26.3.2007. Notice sent by this court was evaded. Fresh steps should be taken against the first respondent/accused.
Appeal is allowed by way of remand.
J.B. KOSHY (JUDGE)
vaa
Crl.A.No. 97/2000
3
J.B.Koshy, J.
Crl. A. No.97 of 2000
Judgment
21-2-2007
3 issues framed by the court
Whether the trial court's acquittal was mechanical and without application of mind due to administrative error in the court calendar.
Whether Section 256 of the Code of Criminal Procedure mandates absolute acquittal even when the absence of the complainant is due to court error.
Whether the appeal against the acquittal in a non-bailable warrant case should be allowed by way of remand.
2 provisions across 1 enactments
Complainant
K.B. Jayakrishnan
State of Kerala
J.B Koshy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
