Appeal against acquittal dismissed for non-consideration of absence application by the court below. High Court set aside the order, restored the case for merits with directions for timely disposal.
Set aside the impugned order of acquittal. Calendar Case restored for decision on merits and to be disposed within six months.
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 ALEXANDER THOMAS
TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936
CRL.A.No. 214 of 2011 ( )
AGAINST THE ORDER IN Crl.L.P. 44/2011 of HIGH COURT OF KERALA DATED 13-01-2011
AGAINST THE ORDER IN CC 573/2009 of J.M.F.C. - I, CHALAKUDY DATED 26-11-2010
APPELLANT(S)/COMPLAINANT:
IRINJALAKUDA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.R.312 IRINJALAKUDA, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, RAJAN CHACKO.
BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR
RESPONDENT(S)/ACCUSED & STATE:
1. BABY SIDHARTHA, W/O.MALEDATH SIDHARTHAN, PAZHOOKKARA, ANNALLUR P.O.-680307, MUKUNDAPURAM TALUK THRISSUR DISTRICT.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31.
R1 BY ADV. SRI.M.R.DHANIL R2 BY PUBLIC PROSECUTOR SMT.R.REMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VDV
ALEXANDER THOMAS, J.
=========================
Crl.Appeal No.214 of 2011
============================ Dated this the 2nd day of December, 2014
JUDGMENT
This appeal has been filed under Section 378(4) of the Code of Criminal Procedure to impugn the order dated 26.11.2010 of the Judicial First Class Magistrate Court, Chalakkudy in the Calendar Case, C.C No.573 of 2009, whereby the accused therein was acquitted under Section 256(1) of the Cr.P.C. The Calendar Case arose out of a private criminal complaint filed by the appellant herein alleging that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act for the dishonour of the alleged cheque in question. The court below in the impugned order held that the complainant absented continuously and that he was also absent on 26.1.2010, on which day the case was posted for evidence and accordingly, the court below proceeded to dismiss the complaint due to absence of the complainant and ordered acquittal of the accused (respondent No.1) herein under Section 256(1) of the Cr.P.C. It is this order rendered on 26.11.2010 under challenge in this appeal.
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17.08.2009. Thereafter the case was posted on 18.12.2009, on which day counsel for the accused appeared and filed an application under Section 205 of the Cr.P.C for exempting the accused from personal appearance. The case was thereafter posted on 25.05.2010, 27.08.2010, 08.10.2010 and 15.11.2010 for evidence. On 15.11.2010 there was no sitting and the case was adjourned to 26.11.2010, it is averred. As the incumbent holding the post of Secretary of the bank, who had instituted the complaint on behalf of the bank, was suffering from illness, an application was filed on his behalf to dispense his personal appearance for the day. But, the learned Magistrate without considering the said application proceeded to acquit the accused under Section 256(1) of the Cr.P.C, it is stated.
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to this reason and not due to any wilful or deliberate absence and that on 26.11.2010 an application was submitted on behalf of the complainant to dispense his personal appearance for the day but that the same was not considered and the learned Magistrate proceeded to acquit the accused as per the impugned order. It is further urged that in the case Joseph V State of Kerala reported in 2010(4) KLT 697, this Court has held that a court can acquit an accused under Section 256(1) of the Cr.P.C only on either of the two days, viz, i) the day appointed for “appearance” of the accused, if summons has been issued or ii) any day subsequent thereto, to which the “hearing” may be adjourned and that the expression “any day subsequent thereto, which the hearing may be adjourned” appearing in Section 256(1) of Cr.P.C refers to the day immediately succeeding the day appointed for appearance of the accused and after recording the plea of not guilty and that such day of “hearing” is the day falling in between the day fixed for appearance of the accused (and recording of plea) and the day to which the case is posted for “evidence” under Section 254(1) of the Cr.P.C. That Section 254(1) of the Cr.P.C mandates that (if the accused pleads not
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guilty), the court “shall” adjourn the case to hear the prosecution and the word used in Section 254(1) is, “shall” and the procedure is mandatory and hence, after recording the plea of not guilty in summons cases, trial courts shall, without fail, post the case for hearing and it shall not instead, straight away post the case for evidence etc.
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into account that the Calendar Case is of the year 2009, it is further ordered in the interest of justice that the court below shall endeavour to ensure that the case is finally disposed of within a period of six months from the date of production of a certified copy of this judgment.
With these observations and directions the Crl.Appeal stands disposed as indicated above.
Sd/- ALEXANDER THOMAS, JUDGE
vdv
//True Copy// P.A to Judge
3 issues framed by the court
Whether the High Court should set aside the order of acquittal due to failure of the court below to consider the application for dispensation of personal appearance.
Whether high courts can remand the matter for decision on merits after ensuring reasonable opportunity to both sides.
Whether the court below should dispose of the case within a specified period of six months in the interest of justice.
Colour shows how this judgement treated each authority
Joseph V State of KeralaReferred¶34
Joseph V State of Kerala reported in 2010(4) KLT 697
3 provisions across 2 enactments
IRINJALAKUDA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.
BABY SIDHARTHA
STATE OF KERALA
ALEXANDER THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
