Allowed

Rohini P.V v. Thahira M

Kerala HC1 Nov 2023CRL.A/1114/2017

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the dismissal of a complaint under the Negotiable Instruments Act. The Court held that the Magistrate erred in acquitting the accused under Section 256(1) CrPC without positively directing the complainant to appear and adduce evidence, violating judicial discretion principles.

What did the court decide?

The impugned order was set aside; the STC was restored; directions given for disposal in accordance with law and appearance on a specified date.

Rohini P.V Vs Thahira M — Cheque Dishonour | Kerala HC (2023)

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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 C.S.DIAS

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WEDNESDAY, THE 1^ST DAY OF NOVEMBER 2023 / 10TH KARTHIKA, 1945

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CRL.A NO. 1114 OF 2017

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AGAINST THE ORDER/JUDGMENT IN STC 17/2016 OF JFCM -V, KANNUR

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APPELLANT/S:

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ROHINI P.V W/O BALAKRISHNAN, AGED 50 YEARS, BRIJILA NIVAS, PUTHIYAPRAMBA, ALAVIL, P.O., KANNUR-670.

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BY ADV SRI.K.RAJESH SUKUMARAN

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RESPONDENT/S:

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1 THAHIRA M W/O LATHEEF, AGED 38 YEARS, THAHIRA NIVAS, CHEMMARASERI PARA,AZHIKODE P.O., KANNUR-670 007.

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2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031.

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BY ADVS. SMT.K.K.CHANDRALEKHA SRI.K.C.SANTHOSHKUMAR

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OTHER PRESENT:

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PP SMT NIMA JACOB

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A NO. 1114 OF 2017

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Dated this the 1^st day of November, 2023

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JUDGMENT

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The appeal is filed challenging the order passed in STC No.17/2016 of the Court of the Judicial First Class Magistrate-V, Kannur dismissing the complaint under Section 256(1) of the Code of Criminal Procedure (in short, 'Code'). The appellant was the complainant and the 1^st respondent was the accused before the court below.

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The appellant had filed the complaint alleging the 1^st respondent to have committed the offence under Section 138 of the Negotiable Instruments Act (in short, 'N.I.Act'). The learned Magistrate took cognizance of the offence and posted the complaint for trial. However, the learned Magistrate, without granting the appellant sufficient opportunity to adduce evidence, dismissed the complaint. The impugned order is erroneous and wrong. Hence, the appeal.

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Heard; Sri.Rajesh Sukumaran K. , the learned

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CRL.A NO. 1114 OF 2017

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Counsel appearing for the appellant, Smt.Chandralekha, the learned Counsel appearing for the 1^st respondent and the learned Public Prosecutor appearing for the 2^nd respondent.

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The question is whether there is any illegality or impropriety in the impugned order passed by the court below.

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It is apposite to extract Section 256 of the Code Of Criminal Procedure, which reads as follows:

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“(1) If the summons has been issued on complaint, and 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, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: PROVIDED that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death”.

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6. In Govindan Nambiar v. Chidambareswara

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[1961 KLT 797], this Court speaking through Anna Chandy J (as she then was), while interpreting Sec. 247

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CRL.A NO. 1114 OF 2017

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of the Code of 1898 (Old Code), an analogous provision

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to Sec.256 of the Cr.P.C., held thus:

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“7. Section 247 is evidently intended to prevent dilatory tactics on the part of complainants and consequent harassment to accused persons. Like any other, the power under this section also has to be used judicially and judiciously and not in a manner that makes the remedy worse than the disease. It is not proper to throw out a case in a hasty or thoughtless manner when the complainant has proved his bona fides and shown himself vigilant in prosecuting the accused”.

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Again, this Court, through the same learned Judge who authored Govindan Nambiar (supra) in Kunhumon v. Kotha and others [1962 KLT 781], held as under:

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“8. I must say in this connection that instances are not rare where Magistrates have exhibited a tendency to clutch at the jurisdiction vested in them under Section 247 Cr. P.C. as a shortcut to obtain quick and easy disposals. The temptation offered by the Section is so much that in one case that was brought to my notice an order of acquittal under Section 247 was passed in the very face of the complainant at 11.15 a.m. on the ground that he was not present earlier when the case was first called. Magistrates will do well to bear in mind that 'despatch is a good thing but to do justice is better”.

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(emphasis supplied)

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In Bijoy v. State of Kerala [2016 (2) KLT 427],

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this Court, while dealing with Sec.256 (1) Cr. P.C observed thus:

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“9. The Magistrate in complaint cases should not dismiss

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CRL.A NO. 1114 OF 2017

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the complaint and acquit the accused by calling the case immediately. Where the case is fixed for appearance of both parties the complainant and accused is represented by lawyers, rejection of the application of the complaint's lawyer without recording the reason is illegal. In such situation, Court should record the reason for his absence and set the law in motion and direct the complainant to appear before Court in person on a particular date for the enquiry. If after giving such opportunity the complainant remains absent and not obey the directions issued by the Court, dismissal of the complaint under such circumstances is proper. If there is sufficient reason for his absence an order passed against him in his absence will vitally affect him and the consequence will be serious. If the Magistrate subsequently discovers that there had been good reason for the absence of the complainant, the Magistrate has no power to correct that mischief. In order to avoid this embarassing situation it is not proper to throw out the case in a hurry manner, when the complainant states his bona fides. Considering the facts and circumstances of the case, it is necessary to give a chance to the complainant to prove his case in the Trial Court.”

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It is far too well settled that the power of the Magistrate under Sec.256 Cr.P.C to acquit an accused should be exercised judicially, based on a definite conclusion that the complainant is no longer desirous of prosecuting the complaint. The power is not to be indiscriminately exercised whimsically and mechanically for the statistical purposes of removing a docket from its rack as it undermines the cause of justice. Instead, the judicious course would be to direct the complaint to appear for the hearing, if it is imperative, and decide

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CRL.A NO. 1114 OF 2017

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whether the drastic step of acquittal is to be passed in case he fails to appear.

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Going by the finding of the learned Magistrate, it is seen that the complaint was posted for evidence to 12.04.2017 and then adjourned to 02.06.2017 and again adjourned to 10.07.2017. The order does not reflect that the learned Magistrate had positively directed the appellant to be present before the court below to adduce evidence. Thus, I am of the considered view that, since the learned Magistrate had not positively directed the complainant to be present to give evidence the impugned order is erroneous and is liable to be set aside.

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Resultantly, the appeal is ordered as follows:

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(i) The impugned order is set aside;

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(ii) STC No.17/2016 is restored back to file;

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(iii) The learned Magistrate is directed to dispose of the complaint in accordance with law;

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(iv) The appellant and the 1^st respondent are directed to appear before the court below on 01.12.2023;

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CRL.A NO. 1114 OF 2017

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(v) As the complaint is of the year 2017, the learned Magistrate shall make an endeavour to dispose of the complaint, as expeditiously as possible;

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(vi) Needless to mention, if the 1^st respondent has already got himself enlarged on bail, the court below shall not insist that the accused has to take

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fresh bail. The bail bond executed by the accused shall be treated sufficient, till the disposal of the complaint.

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Sd/-

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C.S.DIAS JUDGE

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rkc/01.11.23

Rohini P.V v. Thahira M

Case brief

What is this about?

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Rohini P.V v. Thahira M

Case brief

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