Allowed

Ashraf E. v. Gopakumar

Kerala HC8 Dec 2014CRL.A/1174/2014

Case brief

AI extract

What is this about?

Criminal Appeal filed under Sec. 378 CrPC challenging an acquittal of the accused due to dismissal of the appellant's complaint. The Kerala High Court held the dismissal was erroneous, set aside the order, restored the case for trial on merits within six months, and directed the lower court to provide reasonable opportunity to both sides.

What did the court decide?

The impugned order was set aside, the summary trial case restored, and the lower court directed to dispose of the case on merits by June 2015.

Ashraf E. Vs Gopakumar — Cheque Dishonour | Kerala HC (2014)

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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 ALEXANDER THOMAS

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MONDAY, THE 8TH DAY OF DECEMBER 2014/17TH AGRAHAYANA, 1936

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CRL.A.No. 1174 of 2014 ()

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AGAINST THE ORDER/JUDGMENT IN ST 5917/2011 of J.M.F.C.-I, KOLLAM DATED 11-08-2014

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APPELLANT/PETITIONER:

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ASHRAF E.

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S/O. EBRAHIMKUTTY, KOLLANTAZHIKATHU VEEDU KILIKOLLOOR.P.O., KOLLAM DISTRICT.

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BY ADV. SRI.B.MOHANLAL

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RESPONDENTS/RESPONDENTS:

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1. GOPAKUMAR S/O.GOPALAN, SURYA DEVAHARI, KILIKOLLOOR P.O. KOLLAM DISTRICT-691 016.

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2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR SRI.R.GITHESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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==================

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Crl.Appeal No. 1174 of 2014

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==================

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Dated this the 8^th day of December, 2014

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O R D E R

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This appeal has been filed under Sec. 378(4) of the Cr.P.C. to impugn the order dated 11.8.2014 of the Judicial First Class Magistrate's Court-I, Kollam, in S.T.No. 5917/2011, whereby the complaint preferred by the appellant herein was dismissed due to his non-appearance and the accused has been acquitted under Sec. 256(1) Cr.P.C. The Calendar Case arose of out of a private criminal complaint filed by the appellant herein alleging that the accused (1^st respondent herein) has committed the offence punishable under Sec. 138 of the Negotiable Instruments Act for dishonour of the cheque in question. The court below has found that the appellant did not appear on 11.8.2014 when the matter was posted for adducing evidence. Accordingly, court below acquitted the accused under Sec. 256(1) of the Cr.P.C. as per the impugned order.

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Heard Sri.B.Mohan Lal, learned counsel appearing for the appellant and learned Public Prosecutor appearing for the 2^nd

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Crl.A.1174/14 - : 2 :-

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respondent-State of Kerala. Though notice has been served on the 1^st respondent, the said respondent has not entered appearance and contested the matter.

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It is averred in paragraph 3 of the memorandum of this appeal that the court below after taking sworn statement of the appellant had taken the case on file as Summary Trial, S.T.No.5917/2011 and that the appellant was appearing in person and through counsel before the court below and that the accused had secured bail and pleaded not guilty and the court below had referred the case for Adalath, wherein it was not settled and that the appellant produced the original cheque and the other documents, which were marked as Exts.P1 to P6. But that the learned counsel appearing for the complainant before the court below and the advocate clerk attached to that lawyer's chambers failed to inform the appellant about the posting dates of that case and the appellant could not appear before the court below on certain posting dates and that this was not done deliberately but due to the aforementioned circumstances. That the appellant was vigilantly prosecuting the case and that in view of the absence of the appellant and his counsel on 11.8.2014, the learned Magistrate has

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Crl.A.1174/14 - : 3 :-

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dismissed the complaint under Sec.256(1) Cr.P.C. These averments of the appellant have not been rebutted by the 1^st respondent.

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This Court is of the considered opinion that the court below ought to have rendered a decision on merits of the matter and after giving reasonable opportunity to both sides, instead of shutting out the case of the complainant altogether on account of the absence of the complainant and his counsel on 11.8.2014. In this view of the matter, the impugned order herein is set aside. The Summary Trial case, S.T.No.5917/2011 shall stand restored back to the file of the Judicial First Class Magistrate's Court-I, Kollam. The court below shall render a decision on the merits in the matter and after giving reasonable opportunity to both sides and in accordance with law. As the Summary Trial Case was instituted before the court below as early as in the year 2011, the court below shall take all endeavours to ensure that the case is finally disposed of before the end of June, 2015.

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With these observations and directions, the Criminal Appeal stands allowed.

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Sd/-

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sdk+

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ALEXANDER THOMAS, JUDGE

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///True copy/// P.S. to Judge

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Crl.A.1174/14 - : 4 :-

Ashraf E. v. Gopakumar

Case brief

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What did the court decide?

Ashraf E. v. Gopakumar

Case brief

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