Allowed

Sunny Mathew v. George A.J.

Kerala HC10 Nov 2017CRL.A/582/2017

Case brief

AI extract

What is this about?

This appeal challenges an acquittal under Section 138 of the Negotiable Instruments Act, where the trial court relied on the complainant's non-appearance. The High Court set aside the acquittal, restored the case to the trial court, and directed the complainant's personal presence or proper representation for future hearings.

What did the court decide?

The acquittal under Section 138 NI Act is set aside. The complaint is restored to the trial court for further proceedings on 18.12.2017.

Sunny Mathew Vs George A.J. — Cheque Dishonour | 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 10TH DAY OF NOVEMBER 2017/19TH KARTHIKA, 1939

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CRL.A.No. 582 of 2017 ()

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-----------------------------------ST.NO. 87/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KATTAPPANA

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APPELLANT/COMPLAINANT:

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SUNNY MATHEW, AGED 43 YEARS, S/O MATHEW, PARUTHIPPALLIYIL HOUSE, RESIDING IN VICHATTU BUILDING, NATHUKALLU KARA, UPPUKANDAM.P.O, ERATTAYAR VILLAGE, KATTAPPANA.

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BY ADVS.SRI.T.J.MICHAEL

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SRI.JOHN VIPIN

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RESPONDENT(S)/ACCUSED AND STATE :

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1. GEORGE A.J., AGED 61 YEARS, ARACKAKUDIYIL HOUSE, UDUMBANOOR.P.O, THODUPUZHA TALUK-685 595.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA,ERNAKULAM-682 031.

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R1 BY ADVS. SRI.C.M.TOMY

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SRI.MATHEW SKARIA

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SRI.MANU TOM

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SRI.BALU TOM

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R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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ALEXANDER THOMAS, J.

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.................................................................... Crl.Appeal No.582 of 2017 .................................................................... Dated this the 10^th day of November, 2017.

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J U D G M E N T

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The order under challenge in this appeal is one rendered by the trial court concerned (Court of Judicial First Class Magistrate-II, Kattappana), whereby the accused, first respondent herein, in ST No.87/2016 has been acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act, by virtue of the enabling powers conferred under Section 256(1) of the Code of Criminal Procedure.

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Heard Sri.T.J.Michael, learned counsel appearing for the appellant (complainant), Sri.C.M.Tomy, learned counsel appearing for R-1 (accused) and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 (State).

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It is stated by the complainant that initially, the complaint was filed before the Court of Judicial First Class Magistrate-I, Kattappana on 6.5.2014. Later, the case was transferred to the Court of Judicial First Class Magistrate-II, Kattappana and parties were directed to appear on 23.11.2016 and that the complainant had filed application for exemption from personal appearance on 27.2.2017 and then the case was adjourned to 15.3.2017 and on 15.3.2017 also the complainant had

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Crl.A 582/17

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-2-

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filed application for such exemption and he was represented through counsel. But on that day (15.3.2017) the learned Magistrate directed that the complainant should be present on the next posting day, viz. on 17.4.2017. It is stated that on 17.4.2017, the complainant could not personally appear before the trial court as he was suffering from viral fever. The learned counsel appearing for the complainant was present on that day. But he was omitted to file an application to condone the absence of the complainant. It is for these reasons that the trial court has acquitted the accused on account of non-appearance of the complainant. On an appreciation of the above said factual aspects, this Court feels that a lenient approach could have been taken by the learned Magistrate. Accordingly, in view of the above factual aspects, it is ordered that the impugned order dated 17.4.2017 acquitting the accused under Section 256(1) of the Cr.PC will stand set aside. Resultantly, it is ordered that the complaint of the appellant in ST No.87/2016 will stand restored to the file of the trial court concerned (Court of Judicial First Class Magistrate-II, Kattappana).

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The complainant, the learned counsel for the complainant, the accused and the learned counsel for the accused shall appear before the trial court at 11 a.m. on 18.12.2017, on which day, the trial court will proceed further with the complaint, in accordance with law.

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Crl.A 582/17

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-3-

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Sri.T.J.Michael, learned counsel appearing for the appellant (complainant) submits that the complainant will file his proof affidavit in lieu of chief examination before the learned Magistrate on the above said appearance day. The said undertaking made on behalf of the complainant is recorded. Needless to say that the complainant should be personally present to offer himself for cross examination, if he is adducing evidence as a prosecution witness. After the chief examination and cross examination of the complainant are over, it will be open to the complainant to file necessary application for his exemption, in which case the trial court need not insist for personal appearance of the complainant on all further days, unless the complainant himself chooses to appear before the court for his own reasons. In such a situation, the complainant should be represented either through his counsel on record or any counsel duly authorised by the counsel on record, so as to represent the complainant.

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With these observations and directions, this Criminal Appeal will stand finally disposed of.

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(ALEXANDER THOMAS, JUDGE)

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Sunny Mathew v. George A.J.

Case brief

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Sunny Mathew v. George A.J.

Case brief

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