Criminal appeal against acquittal under Section 256(1) Cr.P.C. in a cheque dishonour case where the trial court failed to adjourn due to the complainant's absence. High Court set aside the acquittal and directed retrial.
Set aside acquittal dated 16-11-2017; directed lower court to proceed with proceedings as if acquittal never occurred.
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 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940
CRL.A.No. 46 of 2018 IN Crl.L.P.. 519/2017
AGAINST THE ORDER/JUDGMENT IN ST 30/2017 of J.F.C.M.COURTII, TIRUR, DATED 16-11-2017
AGAINST THE ORDER/JUDGMENT IN CRL. L.P. NO. 519 OF 2017 OF HIGH COURT OF KERALA
APPELLANT/S:
T.K. BASHEER & CO. A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER,T.K MOHAMMED BASHEER, S/O MOHAMMEDKUTTY KURIKKAL,AGED 48 YEARS, THAYYIL KIZHAKKAYIL HOUSE,TIRUR TALUK, MALAPPURAM DISTRICT.
BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN
RESPONDENT/S:
1 LAL TECH ENTERPRISES (P) LTD. A COMPANY HAVING OFFICE AT CHAKOLAS PALACE,NORTH KALAMASSERY, REPRESENTED BY ITS DIRECTORABDUL JALAL, S/O P.K KHADER, PULIMOOTTIL HOUSE,PALLARIMANGALAM PO, ERNAKULAM DISTRICT.PIN.686671
2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. KOCHI.682031
BY ADV. SRI.N.K.MOHANLAL
OTHER PRESENT:
SRI.E. C. BINEESH-PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No. 46 of 2018
JUDGMENT
The appellant is the complainant in S.T. No. 30 of
2017 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 (“the N.I.Act” for short). The court below, on 16-11-2017, acquitted the accused under Section 256 (1) Cr.P.C. stating that the complainant was not present before the court on that date, against which this appeal has been filed after obtaining Special Leave from this Court.
CRL.A.No. 46 of 2018
CRL.A.No. 46 of 2018
the case could not have been adjourned to some other date when the complainant was not present before the court on that date in person. Having gone through the relevant inputs, I am of the view that it is only just and proper to grant one more opportunity to the appellant to contest the matter on merits. For the said reason, I am inclined to set aside the order impugned.
In the result, this appeal stands allowed, setting aside order dated 16-11-2017 passed by the court below acquitting the accused under Section 256 (1) Cr.P.C. and the court below is directed to proceed with S.T. 30 of 2017 in accordance with law, The proceedings of the
CRL.A.No. 46 of 2018
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court below shall stand relegated to the stage prior to the acquittal of the accused on 16-11-2017. The parties shall appear before the court below on 22-10-2018 without
further notice.
Dated this the 24th day of September, 2018.
Sd/-B. SUDHEENDRA KUMAR
ani/
JUDGE
/true copy/
2 issues framed by the court
Whether the High Court can set aside an order of acquittal passed in the absence of the complainant without recording reasons for the failure to adjourn.
Whether the complainant is entitled to an opportunity to present the prosecution case after the acquittal was wrongly passed ex parte.
2 provisions across 2 enactments
T.K. Basheer & Co. A Partnership Firm
Lal Tech Enterprises (P) Ltd.
State of Kerala
B. Sudheendra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
