Allowed

Sasikumar @ Sasi v. Shibu

Kerala HC13 Nov 2017CRL.A/904/2017

Case brief

AI extract

What is this about?

This criminal appeal challenged an order of acquittal where the trial court dismissed a Section 138 complaint due to the complainant's absence without valid proof. The High Court set aside the acquittal, ordered the complainant to pay costs, and remitted the matter to the trial court for fresh consideration with directions to proceed upon the complainant's appearance.

What did the court decide?

The impugned order acquitting the accused was set aside. The complaint was restored to the trial court file. The appellant was directed to pay costs of Rs. 1,000. The trial was remanded for fresh cons

Sasikumar @ Sasi Vs Shibu — 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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MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939

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CRL.A.No. 904 of 2017

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ST 1266/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT.-I,PALAKKAD

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-----------

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APPELLANT/COMPLAINANT:

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SASIKUMAR @ SASI,

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AGED 42 YEARS, S/O. C.K. RAMAN, C.R.S NILAYAM, MUDUKAD, KANNANUR, ALATHUR, PALAKKAD.

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BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)

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RESPONDENT(S)/ACCUSED AND STATE:

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1. SHIBU, AGED 42 YEARS, S/O. GANGADARAN, AYYANVEETTUCHALLAYIL, NANDIYODE, PATTANCHERI, CHITTUR, PALAKKAD - 678 101.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31.

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R2 BY PUBLIC PROSECUTOR SRI JESTIN MATHEW

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-11-2017, 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.Appeal No. 904 of 2017

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Dated this the 13^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 14.09.2017 by the Judicial First Class Magistrate Court-I, Palakkad, whereby the accused in S.T.No.1266/2015 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.

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The appeal was admitted by this Court on 11.10.2017 on which day notice was also ordered to be issued to R1/accused by speed post returnable within two weeks. Now the registry has reported that notice to R1 has been duly served. But there is no appearance for that party. Learned Public Prosecutor has taken notice for R2/State.

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Heard Sri.Johnson Varikkappallil, learned counsel for the appellant/complainant and Sri.Jestin Mathew, learned Public Prosecutor for R2/State.

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The impugned order of acquittal dated 14.09.2017 rendered by the trial court reads as follows:

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This is complainant filed under Section 190 Cr.P.C for offence punishable under Section 142 of Negotiable Instruments Act.

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2. Complainant absent. Applied. Accused also represent. The case was posted for evidence from 19.04.2017 onwards. On that date it was posted to 21.06.2017 and then to 30.06.2017 to produce the complainant for evidence. On 30.06.2017 it was posted for evidence as last chance to 22.07.2017. On that day also the complainant was absent and strict direction was issued to produce the complainant for evidence to 05.08.2017. On 05.08.2017, there was a direction to produce complainant for evidence as last chance to 14.09.2017.

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Crl.Appeal No. 904 of 2017

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Today also the complainant is absent and an application is filed by the counsel stating that the complainant is laid up due to fever. However, no medical certificate is produced in support of the same. Hence I am of the view that the complainant is not ready to adduce evidence. It is to be born in mind that, the production contemplated under N.I.Act is summary manner and the trial is to be concluded within 6 months. Hence I am of the considered view that the complaint is liable to be dismissed and I do so. Hence the complaint is dismissed and accused is acquitted.

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3. Hence the complaint is dismissed and accused is acquitted.

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The appellant has stated in paragraph 3 of the memorandum of appeal that the trial court has posted the case for evidence on 13.10.2017, on which day the appellant could not be present to adduce evidence. Thereafter also the appellant/complainant was absent on two other posting dates in the court below but made an effective representation through a lawyer on all the above mentioned posting dates. The appellant abstained from the aforesaid postings from the court without adducing evidence on the basis of the promise made by the respondent that the matter could be settled before that. It is further submitted that on 14.09.2017 when the above case was called for evidence the appellant was absent and represented through his lawyer and filed a petition to condone his absence. But the court below without accepting the appellant's application to condone his absence dismissed the above case and acquitted the accused. The reason stated for in the absence application filed on behalf of the applicant, is that he was laid up with fever. But the trial court has found that no medical certificate has been produced in support of such a plea.

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Having regard to the above said averments of the

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Crl.Appeal No. 904 of 2017

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memorandum of the appeal, this Court is of the view that the matter could be remitted back to the trial court for consideration of the complaint afresh, subject to payment of costs. The cheque amount involved in this case is Rs.26,000/-.

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Accordingly, the following directions and orders are passed:

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i. Petitioner shall pay cost of Rs.1,000/- (Rupees One thousand only) in cash to the learned counsel appearing for the accused before the trial court within two weeks from the date of receipt of a certified copy of this order.

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ii. Subject to payment of cost, it is ordered that the impugned judgment dated 14.09.2017 acquitting the accused will stand set aside, and resultantly, it is ordered that the complaint of the appellant in S.T.No.1266/2015 will stand restored to the file of the trial court concerned.

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iii.The complainant and the counsel for the complainant shall appear before the trial court at 11 a.m. on 18.12.2017. On the said day, the counsel for the complainant shall produce receipt evidencing payment of the above said cost to the learned counsel appearing for the accused before the trial court. If such receipt is produced, then the trial court shall proceed further in the complaint in accordance with law.

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iv.It is further directed, in case the complainant is interested to adduce evidence, then he should file proof affidavit in lieu of his chief examination before the trial court on the aforesaid date on which day the parties are now directed to appear before the trial court and a copy of the said proof affidavit served in advance to the counsel for the accused.

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With these observations and directions, this Crl.Appeal stands

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finally disposed of.

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Sd/- ALEXANDER THOMAS, JUDGE

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AMV/25/11/2017

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/TRUE COPY/ P.A.TO JUDGE

Sasikumar @ Sasi v. Shibu

Case brief

What is this about?

What did the court decide?

Sasikumar @ Sasi v. Shibu

Case brief

What is this about?

What did the court decide?

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