Allowed

G.F.S.Chits & Loans (P) Ltd. v. Raghu Prabhakaran

Kerala HC3 Aug 2018CRL.A/617/2005

Case brief

AI extract

What is this about?

Criminal Appeal against an illegal acquittal in a cheque dishonour case. The High Court held that a Magistrate cannot acquit an accused under Section 256 Cr.P.C. if the complainant is present. The acquittal was set aside, and the lower court directed to proceed afresh.

What did the court decide?

Acquittal dated 17.11.2004 set aside; complaint directed to be proceeded with afresh; appeal disposed with directions.

G.F.S.Chits & Loans (P) Ltd. Vs Raghu Prabhakaran — 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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FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940

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CRL.A.No. 617 of 2005

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ST 325/2004 of J.M.F.C.-I,THRISSUR

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APPELLANT(S)/COMPLAINANT.

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G.F.S.CHITS & LOANS (P) LTD., POOTHOLE ROAD, THRISSUR 4, REPRESENTED BY ITS, MANAGER, SUNIL GEORGE, 28 YEARS.

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BY ADV.SMT.LATHA PRABHAKARAN

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RESPONDENT(S)/ACCUSED AND STATE.:

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RAGHU PRABHAKARAN, 30 YEARS, ORANAYAMPURATH HOUSE, T.C. 2/1321, POONKUNNAM POST, HARINAGAR, THRISSUR -2.

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STATE OF KERALA, REPRSENTED BY ITS

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PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR, SHRI E C BINEESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.SUDHEENDRA KUMAR, J.

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Crl. Appeal No.617 of 2005

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- - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 3^rd day of August 2018

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J U D G M E N T

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The appellant is the complainant in S.T.No.325 of

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2004 on the files of the court below.

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The appellant filed a complaint against the 1^st respondent herein before the court below alleging offence

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under Section 138 of the Negotiable Instruments Act. On 17.11.2004, the court below acquitted the accused under Section 256 Cr.P.C., against which this appeal has been filed after obtaining special leave from this court.

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Service is complete. However, there is no

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appearance of the first respondent.

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Crl. Appeal No.617/05 : 2 :

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Heard the learned counsel for the appellant and the

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learned Public Prosecutor.

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The order impugned is extracted hereunder:-

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“The case was called on for hearing today to which it had been posted/adjourned.

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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 learned counsel for the appellant has submitted that the appellant was present in person before the court on 17.11.2004 and in the said circumstances, the acquittal of the accused under Section 256 Cr.P.C. was not justified.

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I have perused the proceedings of the court below.

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The proceeding of the court below dated 17.11.2004 is

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extracted hereunder:-

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“17.11.2004 : Complainant present. Accused

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Crl. Appeal No.617/05

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: 3 :

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absent. NBW not executed. No reasonable explanation was given for non execution which shows that complainant is not deligent in prosecuting the accused. So accused is acquitted under Section 256(1) Cr.P.C.”

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Thus it appears that the order impugned is different from the proceedings dated 17.11.2004. This would show that the order impugned was signed by the learned Magistrate without applying his mind.

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It is clear from the proceedings dated 17.11.2004 that the complainant was present before the court on that

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date. Section 256(1) Cr.P.C. provides a discretion to the Magistrate to acquit the accused if the complainant is not present before the court. The court is not having power to acquit the accused under Section 256(1) Cr.P.C. when the complainant is present in person before the court. Since the court below had acquitted the accused under Section

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Crl. Appeal No.617/05 : 4 :

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256(1) Cr.P.C. when the complainant was present before

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the court below, the order passed by the court below is illegal and incorrect and hence, the same cannot be sustained. Consequently, I set aside the same.

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In the result, this Appeal stands allowed, setting aside order dated 17.11.2004 passed by the court below acquitting the accused under Section 256(1) Cr.P.C. in S.T. No.325 of 2004 and the court below is directed to proceed with the complaint afresh, in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the acquittal of the accused on 17.11.2004. The appellant shall appear before the court below on 10.9.2018 without further notice.

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B.SUDHEENDRA KUMAR,JUDGE

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dl/3.8.18 // True copy // PA to Judge

G.F.S.Chits & Loans (P) Ltd. v. Raghu Prabhakaran

Case brief

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G.F.S.Chits & Loans (P) Ltd. v. Raghu Prabhakaran

Case brief

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