Allowed

Sanjeev Kumar K.P v. Sudheer Babu

Kerala HC7 Nov 2017CRL.A/857/2017

Case brief

AI extract

What is this about?

The High Court set aside the magistrates' order acquitting the accused under Sec. 256(1) CrPC due to complainant's non-appearance. The appeal allowed subject to payment of Rs. 3,000 cost to prevent abuse of process. The complaint restored to the trial court for further evidence if the complainant cooperates.

What did the court decide?

Impugned order set aside subject to payment of Rs. 3,000 cost; complaint restored to trial court for further evidence.

Sanjeev Kumar K.P Vs Sudheer Babu — 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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TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939

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CRL.A.No. 857 of 2017 ()

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STC 20/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-V, KANNUR

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APPELLANT/COMPLAINANT:

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SANJEEV KUMAR K.P,

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S/O. ASHOK KUMAR, AGED 42 YEARS, KARTHIKA, P.O. PALLIKUNNU, KANNUR - 670 008.

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BY ADV. SRI.K.RAJESH SUKUMARAN

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RESPONDENT(S)/ACCUSED/STATE:

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1. SUDHEER BABU, S/O. GOPALAN, AGED NOT KNOWN, HARITHA, KAPPAKKADAVU, AZHIKODE P.O., KANNUR - 670 009.

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

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R1 BY ADV. SRI.P.K.RAVISANKAR R2 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

K.V.

ALEXANDER THOMAS, J.

Crl.A.No.857 Of 2017

Dated this the 7th day of November, 2017.

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The order under challenge in this appeal is the one rendered on 5.6.2017 by the trial court concerned (Judicial First Class Magistrate Court-V, Kannur), whereby the accused in S.T.C.No.20/2016 has been acquitted by virtue of the enabling provisions under Sec.256(1) of the Cr.P.C on account of the non appearance of the complainant on that day.

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This appeal was admitted on 9.10.2017, on which day this Court has directed issuance of notice to R-1 accused and PP had taken notice for R-2 State. Now, notice has been duly served on R-1 and Sri.P.K.Ravisankar, learned Advocate, has entered appearance for R-1.

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Heard Sri.Rajesh Sukumaran, learned counsel appearing for the appellant-complainant, Sri.P.K.Ravisankar, learned counsel appearing for R-1 and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State.

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The impugned order dated 5.6.2017 rendered by the trial court reads as follows:

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Crl.A.No.857 Of 2017

“O R D E R

Complainant absent. Accused absent, represented. It is seen from records, that several opportunity is given to the complainant to adduce evidence. Today it is posted as last chance. Hence I find that complainant has no interest to proceed with the case and proceeding with the case is only a abuse if (sic) process if (sic) law. Hence accused is acquitted under Section 25(1) (sic) CrPC.”

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It is stated in para 3 of the memorandum of criminal appeal as follows:

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“3. The Appellant submits that originally the Complaint was filed before the Judicial First Class Magistrate Court No.I, Kannur and after taking the Complaint on file, the case was numbered as STC 360/2016 and after issuing summons to the Accused, the Accused entered appearance on 26.08.2016 and on 16.12.2016, Accused took Bail and on the same day Plea was recorded and the case was posted to 27.01.2017. On 27.01.2017, the case was transferred to Judicial First Class Magistrate Court No.V, Kannur and the case was posted to 13.02.2017 and on that day as there was no sitting, the case was notified to 11.04.2017. On 11.04.2017, Complainant was absent and there was no representation and Accused was represented and the case was posted to 29.05.2017 for Complainant's Evidence as last chance. On 29.05.2017, Complainant was absent and was represented and Accused was absent and applied and the Complaint was posted as Evidence as last chance to 05.06.2017. But on 05.06.2017 as the Complainant was laid up due to Rheumatic Arthritis he was not able to appear before the Court and to give Evidence. Even though the same was represented, Lower Court Acquitted the Accused under section 256(1) CrPC stating that the Complainant has no interest to proceed with the case and proceeding with the case is only an abuse of process of Law.”

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So, the main ground urged by the appellant is that on 5.6.2017 he was laid up due to Rheumatic Arthritis and therefore he could not appear before the court and gave evidence. Even though he was represented through counsel on that day, the trial court has acquitted the accused, etc. However, no medical certificate is seen produced in this case to establish the fact that he is suffering from Rheumatic Arthritis on the

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Crl.A.No.857 Of 2017

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day in question. Sri.P.K.Ravisankar, learned counsel appearing for R-1 would submit that the appellant herein is accused in various cases for offences like under Sec.420 IPC and that non bailable warrants have been issued against him in such cases and he is not in a position to appear before the trial court. On account of these reasons, this Court is of the view that even if the matter is remitted, it is quite likely that the complainant herein might yet remain absent, etc. This aspect is denied by the learned counsel appearing for the appellant-complainant.

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The cheque amount involved in this case is for Rs.10 lakhs. Having regard to the facts and circumstances of this case, this Court is of the view that the impugned order could be interdicted subject to payment of cost. Accordingly, the appellant should pay Rs.3,000/(Rupees Three Thousand only) to the learned counsel appearing for the accused before the trial court within 2 weeks from the date notified for receiving a certified copy of this order and produce the receipt before the trial court on the day fixed for appearance of the accused. Subject to this condition, the impugned order dated 5.6.2017 passed by the Judicial First Class Magistrate Court-V, Kannur, in S.T.C.No.20/2016 will stand set aside and resultantly, it is ordered that subject to the above condition, the

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Crl.A.No.857 Of 2017

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complaint in S.T.C.No.20/2016 will stand restored to the trial court. The complainant, counsel for the complainant, accused and the learned counsel for the accused shall personally appear before the trial court at 11:00 a.m on 1.12.2017. On that day, the counsel for the complainant should produce the receipt evidencing payment of cost of Rs.3,000/from the learned counsel appearing for the accused. If such a receipt is not produced on the above said date, then the benefit of this direction will stand automatically vacated without any further orders from this Court, in which case the impugned order dated 5.6.2017 will stand restored. If on the other hand, such a receipt is produced before the trial court, evidencing payment of cost as directed, then the trial court shall proceed further with the complaint in accordance with law. It is made clear that in case the petitioner does not co-operate with the trial court in giving his evidence, then the trial court will be at liberty to take appropriate steps in accordance with law under Sec.256 of the Cr.P.C.

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With these observations and directions, the Criminal Appeal stands finally disposed of.

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ALEXANDER THOMAS, Judge.

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bkn/-

Sanjeev Kumar K.P v. Sudheer Babu

Case brief

What is this about?

What did the court decide?

Sanjeev Kumar K.P v. Sudheer Babu

Case brief

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What did the court decide?

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