Allowed

Chenthamarakshan v. Valsala

Kerala HC17 Nov 2017CRL.A/1036/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal and quashed the acquittal order where the complainant failed to appear without representation, provided the complainant pays costs to the accused's counsel and produces proof of payment.

What did the court decide?

The impugned judgment of acquittal was set aside and the complaint restored to the trial court subject to payment of Rs.1,500 costs to the accused's counsel.

Chenthamarakshan Vs Valsala — Murder and Culpable Homicide | Kerala HC (2017)

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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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FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939

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CRL.A.No. 1036 of 2017

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CC 181/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, PALAKKAD ----------

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APPELLANT/COMPLAINANT:

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CHENTHAMARAKSHAN,

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S/O.KUTTAPPAN, 66/6, KAVUNGAL HOUSE, PUDUPARIYARAM, PALAKKAD - 678 503.

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BY ADV. SRI.U.BALAGANGADHARAN

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RESPONDENT(S)/ACCUSED 1 AND STATE:-:

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1. VALSALA, W/O.UNNIKRISHNAN, KEERTHI HOUSE, MEETNA, OTTAPPALAM - 679 101.

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2. STATE OF KERALA,

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REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

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R1 BY ADVS. SRI.R.SREEHARI

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SRI.SACHIN VYAS

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R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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ALEXANDER THOMAS, J.

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Crl.A.No.1036 Of 2017

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Dated this the 17th day of November, 2017.

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The judgment under challenge in this Appeal is the one contained in Anx-A, rendered by the trial court (Judicial First Class Magistrate Court-III, Palakkad) on 20.5.2017 whereby the accused in C.C.No.181/2006 has been acquitted of the offence punishable under Sec.138 of the Negotiable Instruments Act, by virtue of the enabling provisions under Sec.256(1) of the Cr.P.C. The appellant herein is the complainant and the 1^st respondent herein is the accused in the above said C.C.No.181/2006. The total amounts covered by the two dishonoured cheques dated 25.1.2015 and 20.11.2015 are for Rs.6 lakhs.

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Heard Sri.U.Balagangadharan, learned counsel appearing for the appellant/complainant, Sri.R.Sreehari, learned counsel appearing for R-1 (accused) and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The impugned judgment of acquittal dated 20.5.2017 reads as follows:

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::2::

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Crl.A.No.1036 Of 2017

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“JUDGMENT

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This is a private complaint filed alleging commission of offence under section 138 of Negotiable Instruments Act.

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The case was called on for hearing today to which it had been

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posted.

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Accused is absent and represented. Complainant is absent. No representation for complainant. Name of complainant and his counsel called in open court. Nobody represented case for complainant. The case has been posted for evidence of complainant. As complainant is absent and there is no representation for him and also considering fact that case has been posted for evidence of complainant, accused is acquitted under section 256(1) of Cr.P.C.”

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According to the appellant there are altogether 14 postings and the complainant was either present or represented on 12 occasions and on the 13^th posting dated 22.4.2017, the complainant sought exemption from personal appearance and it was allowed and on the 14 th posting on 20.5.2017 (on which day the impugned order was passed), neither the complainant nor his counsel was present, which led to the impugned judgment of acquittal. It is stated by the appellant’s counsel that due to personal inconvenience the counsel could not appear before the court below and to file formal application for condoning the absence of the complainant, etc. In the light of the facts and circumstances, this court is inclined to consider the plea for restoration, only subject to payment of costs. Accordingly, it is ordered that the appellant/complainant shall pay a cost of Rs.1,500/- (Rupees One Thousand and Five Hundred only) to the learned counsel appearing for R-

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::3::

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Crl.A.No.1036 Of 2017

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1 herein within 2 weeks and produce receipt evidencing such payment of cost before the trial court before the day of appearance before that court. Subject to this condition the impugned judgment of acquittal dated 20.5.2017 will stand set aside and resultantly the complaint in C.C.No.181/2016 will stand restored to the trial court concerned.

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The learned counsel appearing for the appellant/complainant submits that the appellant would undertake to file proof affidavit in lieu of chief examination before the trial court on the day of appearance before the court below. Accordingly, it is ordered that the appellant, counsel for the appellant, accused and the counsel for the accused shall personally present before the trial court on 30.12.2017, on which day the trial court shall proceed further with the complaint in accordance with law. It is made clear that in case the appellant does not produce the receipt evidencing payment of cost as directed herein, then the benefit of the direction given by this Court in this judgment will stand automatically vacated and in that case the impugned acquittal order dated 20.5.2017 will stand restored.

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With these observations and directions, the Crl.A stands finally disposed of.

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ALEXANDER THOMAS, Judge.

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bkn/-

Chenthamarakshan v. Valsala

Case brief

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What did the court decide?

Chenthamarakshan v. Valsala

Case brief

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