Appeal against acquittal in a cheque dishonour case. Lower court acquitted accused under Section 257 Cr.P.C. for complainant's absence without withdrawal request. High Court set aside acquittal, finding fault in procedure.
Appeal allowed; order of acquittal dated 29.06.2017 set aside; proceedings relegated to stage prior to acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
MONDAY, THE 6TH DAY OF AUGUST 2018 / 15TH SRAVANA, 1940
CRL.A.No. 320 of 2018
ST 109/2016 of J.M.F.C.-II, VAIKOM
APPELLANT(S)/COMPLAINANT.
MATHEW JOHN, AGED 56 YEARS, ELAMTHURUTHIL HOUSE, T.V PURAM, MOOTHEDATHUKAVU KARA, VAIKOM TALUK.
BY ADVS.SRI.P.N.SASIDHARAN SRI.RIJO JOY
RESPONDENT(S)/ACCUSED & STATE:
1. JOSEPH AUGUSTINE EZHEKUNNEL HOUSE, MANNAKKANADU PO, PALA.686575
2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN.682031.
R2 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
STK
B. SUDHEENDRA KUMAR, J.
--------------------------------
Crl. Appeal No.320 of 2018
Dated this the 6th day of August, 2018
JUDGMENT
The appellant is the complainant in S.T.No.109/2016 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 Negotiable Instruments Act (in short, 'the N.I.Act'). On 29.06.2017, the court below acquitted the accused under Section 257 Cr.P.C., against which this appeal has been filed after obtaining special leave from this Court.
hereunder:-
“Complainant absent. No application filed. No reason stated why he could not be present. The case is posted for complainant's evidence. Complainant absent. No evidence adduced. Hence the complaint is dismissed and the accused is
Crl. Appeal No.320 of 2018
-: 2 :-
acquitted u/s 257 of Cr.P.C.”
Crl. Appeal No.320 of 2018
stood posted to 29.06.2017. However, the case was advanced on 5.6.2017 at the instance of the accused. The warrant was recalled by the court on that day and thereafter, the court posted the case to 29.06.2017. On 5.6.2017, there was no representation for the complainant as the complainant was not informed of the advancing of the case by the accused. Therefore, it is clear that the case was not posted to 29.06.2017 for evidence as stated by the learned Magistrate. The learned counsel for the complainant filed an application to condone the absence of the complainant on that day. Since the case was not posted for the evidence of the complainant on 29.06.2017, the presence of the complainant was not at all necessary on that day. In the said circumstances, there was no justification in acquitting the accused, recording that the complainant was absent. For the said reasons, the order impugned cannot be sustained and consequently, I set aside the same.
Crl. Appeal No.320 of 2018
-: 4 :-
In the result, this appeal stands allowed, setting aside order dated 29.06.2017 passed by the court below in S.T.No.109/2016 and the court below is directed to proceed with S.T.No.109/2016, in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the acquittal of the accused on 29.06.2017. The appellant shall appear before the court bellow on 11.09.2018 without further notice.
Sd/- B. SUDHEENDRA KUMAR, JUDGE
STK
//TRUE COPY//
//P.A. TO JUDGE//
3 issues framed by the court
Whether the acquittal under Section 257 Cr.P.C. is sustainable when the complainant was absent due to lack of notice and no withdrawal request was filed.
Whether the appeal against the acquittal of the accused in a cheque bounce case under Section 138 Negotiable Instruments Act should be allowed.
Whether the lower court erronously acquittal despite no application for withdrawal by complainant.
2 provisions across 2 enactments
Mathew John
Joseph Augustine Ezekunnell
State of Kerala
B. Sudheendra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
