Allowed

S.O.Dersini v. M.Arumughan

Kerala HC7 Sept 2012CRL.A/974/2003

Case brief

AI extract

What is this about?

Kerala High Court allowed a criminal appeal against an illegal acquittal. The trial Magistrate erroneously dismissed the complainant's absence application while the case was posted solely for executing a procuration warrant, deeming the appellant's presence unnecessary. The High Court set aside the acquittal and remanded the matter.

What did the court decide?

Impugned order of acquittal set aside; case remanded to trial court with direction to secure presence of accused without delay.

S.O.Dersini Vs M.Arumughan — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934

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CRL.A.No. 974 of 2003 (C)

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ST.556/1994 of ADDL.C.J.M.,TRIVANDRUM

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APPELLANT(S)/COMPLAINANT :-

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S.O. DERSINI, AGED 27 YEARS, D/O.SREEKUMAR, RESIDING AT T.C.29/856 SANTHI NIVAS, PALKULANGARA KAITHAMUKKU P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.NAIR AJAY KRISHNAN & NARAYANAN

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RESPONDENT(S)/ACCUSED & STATE :-

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1. N.ARUMUGHAN, AGED ABOUT 40 YEARS, SON OF NAGALINGOM ASARI, PRESIDING AT RADHAKRISHNA NAGAR, NEAR N.G.O. B COLONY EAST KOTTAR P.O., NAGARCOIL K.K. DISTRICT, TAMIL NADU.

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2. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION OF HIGH COURT OF KERALA.

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BY PUBLIC PROSECUTOR SMT.JASMINE V.H.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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N.K.BALAKRISHNAN, J. -------------------------------Crl.A. No.974 of 2003

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Dated this the 7^th day of September 2012

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J U D G M E N T

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The appellant is the complainant in a case filed under Sec.138 of N.I.Act. It was filed in the year 1994. The presence of the accused could not be secured before the trial court. Non bailable warrants were issued against him several times. On one of the days when the case stood posted for getting the non bailable warrant executed, the complainant was stated to be absent and on that day, the learned Magistrate rejected the application for condoning the absence of the complainant and thus acquitted the accused under Sec.256(1) Cr.P.C.

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The order is per se illegal, the learned counsel submits. The complainant's physical presence was not required when the case was posted only for securing the presence of the accused by issuing non bailable warrant. The case was actually awaiting report of the execution of the non bailable warrant. It is not known why the learned Magistrate has chosen to dismiss the application for the condonation of absence of the

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Crl.A. No.974 of 2003

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-: 2 :-

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complainant, that too, when his physical presence was not at all required.

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It is true in this Crl.A. notice could not be served on the first respondent. But since he did not appear before the trial court and as the order mentioned above is per se illegal, I find that this appeal need not be kept alive, awaiting service of notice on the respondent. I find that the impugned order passed by the learned Magistrate is liable to be set aside.

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Hence, this Crl.A. is allowed. The impugned order acquitting the accused under Sec.256(1) Cr.P.C. is set aside. The case is remanded to the trial court. But, it is made clear that the complainant should take steps before the trial court to secure the presence of the accused without delay. The complainant will appear before the trial court on 25.9.2012.

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N.K.BALAKRISHNAN, J UDGE.

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Jvt

S.O.Dersini v. M.Arumughan

Case brief

What is this about?

What did the court decide?

S.O.Dersini v. M.Arumughan

Case brief

What is this about?

What did the court decide?

What the court decided

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