High Court set aside the Sessions Court's acquittal order in a cheque bounce case because the lower appellate court disposed of the appeal without hearing the appellant or complainant, remanding the matter for fresh disposal.
Impugned judgment of Sessions Court set aside and matter remanded for fresh disposal after hearing all parties.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2013/22ND KARTHIKA, 1935
CRL.A.No. 555 of 2008 ( )
AGAINST THE JUDGMENT IN CRA 116/2007 of COURT OF ADDL.SESSIONS JUDGE (AD HOC-1), KOTTAYAM, DATED 03-07-2007
APPELLANT(S)/2nd RESPONDENT IN CRA.116/07/COMPLAINANT IN C.C.321/04:
E.P.PHILIP, S/O. POULOSE, EZHUKALANICKAL MELUKAVU P.O.
BY ADV. SRI.J.MATHAPPAN SRI.AGINOV MATHAPPAN
RESPONDENT(S)/APPELLANT IN CRA.116/07/ACCUSED IN C.C.321/04:
1. THOMAS JOSEPH, S/O. JOSEPH KUNNUMPURATHU HOUSE, ELLUMPURAM P.O., MUTTAM IDUKKI DISTRICT-685 587.
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA
BY ADV. SRI.C.A.CHACKO
BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.A.No.555 of 2008
Dated this the 13th day of November, 2013.
J U D G M E N T
Challenge in the above appeal is against the judgment dated 3.7.2007 in Crl.A.No.116/07 of the court of Sessions, Kottayam, as the respondent therein is aggrieved by the said judgment, by which the learned Judge of the appellate court acquitted the accused, though the trial court convicted him for the offence punishable under section 138 of the NI Act, accepting the case of the complainant.
70,000/- and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 11.5.2004 for 70,000/-, which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused. The accused has not repaid the amount covered by theCrl.A.No.555 of 2008
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dishonoured cheque, inspite of the fact that a formal demand notice was served on him and therefore, according to the complainant, the accused has committed the offence punishable under section 138 of the NI Act.
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in filing a complaint. Thus concluded that the accused has committed the offence punishable under section 138 of the NI Act. On such conviction, the accused is sentenced to undergo simple imprisonment for a period of 4 months and also ordered to pay a compensation of `70,000/- being the amount covered by the cheque as compensation to the complainant under section 357(3) of Cr.P.C. and the default sentence is fixed as simple imprisonment for 2 months. It is also ordered that the compensation, if realised, shall be paid in full to the complainant.
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Crl.A.No.555 of 2008
learned counsel for the 1st respondent.
against and in favour of the judgment impugned in this appeal. According to me, at this stage, this Court need not go into the merits of such contentions, since the above appeal was disposed by the lower appellate court without hearing either the appellant/2nd respondent/complainant or the 1st respondent/appellant/accused. In paragraph 5 of the impugned judgment, the learned Judge of the appellate court has stated that,
“ 5. Appellant and 2nd respondent not turned up. They were called absent. Heard the first respondent and taken for judgment. Upon perusal of the grounds in the appeal memorandum the points that arises for consideration are the following:
From the above, it is crystal clear that while disposing the
Crl.A.No.555 of 2008
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above appeal, the lower appellate court has neither heard the appellant/accused and the 2nd respondent/complainant, nor their respective counsel. It is recorded that the learned Judge has heard the 1st respondent, who is the State of Kerala. So, the above judgment cannot be treated on merit. Hence, the matter has to be remanded to the lower appellate court for a fresh disposal after hearing both the complainant as well as the accused who are respectively the 2nd respondent and appellant therein.
In the result, this appeal is disposed of setting aside the judgment dated 3.7.2007 in Crl.A.No.116/07 of the court of Additional Sessions Judge (Ad hoc-I), Kottayam, and the matter is remanded back to the same appellate court for fresh disposal of the above appeal on merit after hearing both the appellant and the 2nd respondent therein, who are respectively the 1st respondent and appellant before this Court. It is made clear that the impugned judgment is set aside by this Court not on merit, but only to enable the lower appellate court to pass a fresh judgment after hearing the matter afreshly. The Registry is directed
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to sent back the connected records to the lower appellate court as expeditiously as possible at any rate within a period of 2 weeks from today and the lower appellate court is directed to post the above appeal, ie., Crl.A.No.116/07 before it on 16.12.2013 , on which date both the complainant and the accused, who are respectively the 2nd respondent and the appellant in the above appeal, are directed to appear before the said court either in person or though their respective counsel and the counsel for the contesting parties have undertaken that they will make arrangements for the appearance of parties, as directed above.
Appeal is disposed of accordingly.
Sd/- V.K.MOHANAN, Judge
ami/
//True copy//
P.A. to Judge
2 issues framed by the court
Whether the judgment of the lower appellate court acquitting the accused was passed after hearing both parties.
Whether the appeal needs to be remanded for disposal after hearing the absent parties.
1 provisions across 1 enactments
E.P.PHILIP
THOMAS JOSEPH
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court