Allowed

Joseph Thomas v. M.Radhakrishnan and Another

Kerala HC8 Aug 2018CRL.A/2147/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an appeal against an acquittal order. It set aside the low court's decision of acquittal under Section 256(1) Cr.P.C. and directed the trial court to proceed with the case on merits, granting the complainant a fresh opportunity to appear.

What did the court decide?

Set aside the acquittal order dated 24-01-2005 and direct the lower court to proceed with C.C.No.400 of 2003 on merits.

Joseph Thomas Vs M.Radhakrishnan and Another — Cheque Dishonour | Kerala HC (2018)

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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 B.SUDHEENDRA KUMAR

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WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940

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CRL.A.No. 2147 of 2007

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Crl.L.P. 578/2007 of HIGH COURT OF KERALA DATED 23-08-2007 CC 400/2003 OF JFCM, ERATTUPETTA

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APPELLANT(S)/COMPLAINANT

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JOSEPH THOMAS, AREECKAL HOUSE, NEELOOR P.O., KOTTAYAM DISTRICT.

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BY ADV.SRI.K.M.MOHAMMED KUNHI

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RESPONDENT(S)/ACCUSED & STATE:

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1. M.RADHAKRISHNAN, MUTTAPILLIL HOUSE, PROPRIETOR - INDIAN RESTAURANT,, NEAR MATHA MOVIE HOUSE, N.H.ROAD, ADMIMALI,, PIN - 685 561.

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2. STATE OF KERALA,

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REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

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R2 BY GOVERNMENT PLEADAER SRI.E.C.BINEESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SCL.

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B. SUDHEENDRA KUMAR, J.

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Crl.Appeal No. 2147 of 2007

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Dated this the 8^th day of August, 2018

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JUDGMENT

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The appellant is the complainant in C.C.No.400 of 2003 on the files of the court below. The appellant filed a complaint against the first respondent herein before the court below alleging offence under Section 138 of the N.I.Act. The court below as per order dated 24-01-2005, acquitted the accused under Section 256 (1) Cr.P.C., against which, this appeal has been filed after obtaining special leave from this Court.

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It has been contended by the appellant that the appellant was laid up and hence the appellant was not in a position to appear before the court on 24-01-2005. An application was also filed on behalf of the appellant. However, the court below rejected the said application and acquitted the accused under Section 256 (1) Cr.P.C. The order impugned is extracted hereunder:-

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“The case was called for hearing today to which

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Crl.Appeal No. 2147 of 2007

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it had been posted. The complainant not being present either in person or by pleader the accused is acquitted under Section 256, Criminal Procedure Code”.

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The order impugned would show that the

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complainant was not having any representation before the court on 24-01-2005. However, the proceedings of the court below dated 24-01-2005 would show that the complainant was duly represented before the court. It appears from the proceedings of the court below that the complainant was absent on that day. However, an application was filed on his behalf. The said application was rejected by the court below, stating that the complainant failed to appear before the court to adduce evidence. Thus, it appears that the court below signed the order impugned without applying the mind.

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Having regard to the facts and circumstances of the case, including the fact that an application was filed on behalf of the complainant to condone the absence of the complainant before the court on 24-01-2005, I am of the view that it is only just and proper to grant one more opportunity to the

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Crl.Appeal No. 2147 of 2007

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-3-

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complainant to contest the matter on merits.

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In the result, this appeal stands allowed, setting aside order dated 24-01-2005 in C.C.No.400 of 2003 passed by the court below acquitting the accused under Section 256 (1) Cr.P.C and the court below is directed to proceed with C.C.No.400 of 2003 in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the acquittal of the accused on 24-01-2005. The appellant shall appear before the court below on 24.9.2018 without further notice.

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Sd/B. SUDHEENDRA KUMAR JUDGE

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Scl/8.8.18

Joseph Thomas v. M.Radhakrishnan and Another

Case brief

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Joseph Thomas v. M.Radhakrishnan and Another

Case brief

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