Allowed

Mathrubhumi Printing and Publishing Co. Ltd., v. Abdul Azeez

Kerala HC18 Dec 2019CRL.A/1157/2019

Case brief

AI extract

What is this about?

Special Leave Petition dismissed. Special Leave Petition to the High Court allowing an acquittal order, Criminal Appeal No. 1157 of 2019, criminal appeal in an cheque bounce case where the High Court set aside an acquittal obtained under Section 256(1) of CrPC due to the complainant's sole absence.

What did the court decide?

Impugned order was set aside; the learned Magistrate is directed to take back the case on file and proceed in accordance with law.

Mathrubhumi Printing and Publishing Co. Ltd., Vs Abdul Azeez — Cheque Dishonour | Kerala HC (2019)

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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 RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941

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CRL.A.No.1157 OF 2019

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AGAINST THE ORDER/JUDGMENT IN ST 19/2019 DATED 30-04-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS - VIII, KOZHIKODE

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Crl.L.P. 388/2019 OF HIGH COURT OF KERALA

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APPELLANT/S:

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MATHRUBHUMI PRINTING AND PUBLISHING CO LTD., MJ KRISHNAMOHAN MEMORIAL BUILDING, K.P.KESAVA MENON ROAD, KOZHIKODE- 673001, REPRESENTED BY ITS ASSISTANT MANAGER, CIRCULATION.

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BY ADV. SRI.SHARAN SHAHIER

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RESPONDENT/S:

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1 ABDUL AZEEZ, AGED 58 YEARS OLAKARA HOUSE, THADAPARAMBU KUMARANALLOOR (PO), MUKKAM, KOZHIKODE- 673602.

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2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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OTHER PRESENT:

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SRI B JAYASURYA SR PP

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

The appellant herein is the complainant in S.T No. 19 of 2019 on the files of the Judicial First Class Magistrate Court – VIII , Kozhikode. The said complaint was lodged against the 1^st respondent herein under Section 138 of the Negotiable Instruments Act.

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On 30.4.2019, on which day the case was posted, there was no appearance for the complainant. The complainant was also absent. The learned Magistrate went on to hold that the absence of the complainant was intentional and proceeded to acquit the accused under Section 256 (1) of the Code of Criminal Procedure,1973.

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Sri Sharan Shahier , the learned counsel appearing for the appellant submitted that the complaint was filed by a leading publishing Company through its Assistant Manager to realize the amount due to the Company. The complaint was filed before the Judicial Magistrate of the I Class- VII on 29.5.2018 and he was diligently prosecuting the same. The accused appeared after initiation of coercive proceedings and later the case was made

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over to the Judicial Magistrate of the I Class – VIII Kozhikkode. The counsel had mistakenly noted the posting of the case as 20.5.2019 instead of 20.4.2019 and he failed to appear. The case was taken up on 20.4.2019 and noting the absence of the complainant and his advocate, the accused was acquitted. It is submitted that the acquittal was made in a mechanical manner that too in a case which was diligently being prosecuted by the complainant. By acquitting the accused for the absence of the complainant on a solitary occasion, gross miscarriage of justice has occasioned, contends the learned counsel.

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Sri Ranjith Narayanan, the learned Counsel , appeared for the 1^st respondent . The learned counsel justified the order passed by the learned Magistrate and it is submitted that the order does not warrant any interference.

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I have considered the submissions advanced and have gone through the proceedings sheet which is made available. I find that the case was posted on 20.4.2019 and since the learned Magistrate was on leave, the case was posted on 30.4.2019. The specific case of the appellant is that the date of posting was

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mistakenly noted as 20.5.2019. The case appears to have been taken up on 30.4.2019 and on which day the complainant and his counsel were absent . Holding that the absence of the appellant is intentional, the accused was acquitted.

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Having considered the facts and circumstances, I am of the considered view that the learned Magistrate was not justified in acquitting the accused. The records reveal that the case was being diligently prosecuted by the appellant. For his failure to appear before the learned Magistrate on a solitary day, the accused was acquitted. Of course, Section 256(1) of the Code enables the learned Magistrate to acquit the accused , if on the day appointed for the appearance of the accused, or any day subsequent thereto , to which the hearing may be adjourned, the complainant does not appear. However the provision also states that for some reasons he thinks it proper to adjourn the hearing of the case to some other day, he may do so. Thus the intention of the legislature is clear. The learned Magistrate is expected to exercise his discretion and consider whether it would be proper to adjourn the case. If the learned Magistrate was of the view that it

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would only be a futile exercise and that it will inure only to drag on the proceedings , the learned Magistrate could have proceeded to acquit the accused.

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In Chettinad Cement Corporation V Proprietor , Rugmini Steels, Tvm and Another 2014 (2) KHC 537 , it was held by this Court as follows:-

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As has been observed in the various decisions on the point, the learned Magistrates are to be reminded of the fact that while exercising the discretion they should not forget that their very existence is for dispensation of justice but within the frame work of the statutes governing particular cases. A complainant usually approaches the court with a case because the accused committed wrong to him. Though there may be cases where the complaints are filed only to cause harassment to the accused, that can only be stated as an exception. Magistrate cannot proceed on the premise that complaints are filed only to cause harassment to the accused. While maintaining the presumption of innocence of the accused, the court should not be harsh or hasty in disposing such complaints availing of the provision under Section 256 (1) Cr.P.C. totally disregarding the injustice that may be caused to the complainant. The endeavour of the court should be to advance justice and not to deny it. It cannot be forgotten

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that there may be host of reasons for the absence of the complainant when the case is called. Either he might have been held up due to heavy traffic block or because the vehicle was held up at a level - cross (Railway gate). The fact that there used to be a huge crowd in the veranda and at the entrance door of the court which prevents the complainant from entering the court on time are not matters which the Magistrate can lose sight of. The court should be cautious of such situations as well. The fact that the complainant was absent on an earlier date also may not in all cases be a reason to invoke the provision under Sec. 256 (1) Cr.P.C. If the case is posted for recording the evidence, the better course would be to pass over the matter and not to immediately invoke Sec. 256 (1) Cr.P.C. solely for the reason that the complainant could not enter the court hall when the case is called. There may be variety of reasons for his inability to enter the court hall or to reach the court on time. There may also be cases where the counsel appearing for the complainant could not be present in court either because he was engaged in another court or because of other reasons. True that the counsel is expected to make arrangements to represent the matter in court. But for the fault or lapses on the part of the counsel, a genuine complaint cannot be thrown out. There is a propensity to see that the pendency is reduced by adopting such shortcut disposal resorting to Sec. 256(1) Cr.P.C. It cannot be justified.

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In view of the above , I hold that the impugned order passed

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under section 256(1) of the Code cannot be sustained.

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The impugned order is set aside. The learned magistrate is directed to take back the case on file, and proceed with the same,

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in accordance with law.