Partly allowed

M/S.Gentleman Finance v. Syamlal @ Lalan

Kerala HC14 Nov 2017CRL.A/884/2017

Case brief

AI extract

What is this about?

The Kerala High Court set aside the trial court's acquittal order for cheque dishonour. The lower court erred in acquitting the accused solely because the complainant failed to file the required proof affidavit despite their presence and keeping their counsel on record, allowing the appeal with directions for the prosecution to file the affidavit shortly.

What did the court decide?

The acquittal order dated 03.03.2017 set aside and the complaint restored to the trial court. Complainant undertook to file proof affidavit before 06.12.2017.

M/S.Gentleman Finance Vs Syamlal @ Lalan — Kerala HC (2017) — LawSathi Research

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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 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939

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CRL.A.No. 884 of 2017 ()

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ST 4/2016 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-III, CHERTHALA.

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APPELLANT/PETITIONER/COMPLAINANT:

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M/S.GENTLEMAN CHITT FUND COMPANY(INDIA) PVT.LTD., ANAND BAZAR, THALAYOLAPPARAMBU, KOTTAYAM, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, SALIM KUMAR, AGED 47 YEARS, S/O.PADMANABHAN, AAYYRAPALLITHARA, THIRUNALLUR PO, CHERTHALA.

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BY ADVS.SRI.A.T.ANILKUMAR SMT.V.SHYLAJA

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RESPONDENTS/RESPONDENTS/ACCUSED NO.1:

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1. SYAMLAL @ LALAN, S/O.CHIDAMBARAN, VELIKKAKATHU, KADAKKARAPPALLY PO, CHERTHALA.

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2. STATE OF KERALA. REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.

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R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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ALEXANDER THOMAS, J.

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Crl.Appeal No. 884 of 2017

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Dated this the 14^th day of November, 2017

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JUDGMENT

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The order under challenge in this appeal is the one rendered on 03.03.2017 by the Judicial First Class Magistrate-III, Cherthala, thereby the accused in S.T.No.4/2016 has been acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, by virtue of the enabling powers conferred under Section 256(1) of Cr.P.C. The appeal was admitted on 06.10.2017 on which day notice was also ordered to be issued to R1 by speed post. Now the registry has reported that notice to R1 has been duly served. There was no appearance for that party.

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Heard Sri.A.T.Anilkumar, learned counsel for the petitioner/complainant and Sri.Jestin Mathew, learned Public Prosecutor for R2/State.

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The impugned acquittal order dated 03.03.2017, reads as

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follows:

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Complainant present. Accused appeared. No affidavit filed despite specific directions. The accused is acquitted of under Section 256 of Cr.P.C.

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It is urged by the learned counsel for the appellant that as can be seen from a mere reading of the impugned order, the complainant was in fact present before the trial court on the day in question, and that he had only sought some more time to file proof affidavit in lieu of chief examination and that without allowing the said

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Crl.Appeal No. 884 of 2017

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plea, the accused has been ordered to be acquitted as per the impugned order. It is stated by the appellant that the appellant is regularly representing the court and on 03.03.2017, the appellant sought some more time for preparation and finalisation of the proof affidavit through his counsel as some more documents were to be collected.

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In the light of these aspects, this Court is of the view that the impugned order requires interdiction. Accordingly, it is ordered that the impugned acquittal order dated 03.03.2017 passed in this case by the trial court will stand set aside. Resultantly it is ordered that the complaint of the appellant in S.T.No.4/2016 will stand restored to the file of the trial court concerned.

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Counsel for the complainant submits that, he will file proof affidavit before the trial court before the next posting date. The said undertaking is recorded. The complainant and the learned counsel for the complainant shall appear before the trial court at 11 a.m. on 06.12.2017, on which day the complainant should ensure that the proof affidavit is also filed with a copy served on the counsel for the accused. Thereafter the trial court will proceed further with the complaint, in accordance with law.

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With these observations and directions this Crl. Appeal stands finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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AMV/15/11/2017

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/TRUE COPY/ P.A.TO JUDGE

M/S.Gentleman Finance v. Syamlal @ Lalan

Case brief

What is this about?

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M/S.Gentleman Finance v. Syamlal @ Lalan

Case brief

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What did the court decide?

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