Allowed

A.J. Viju v. P.P.Shamsheer

Kerala HC2 Jun 2023CRL.A/13/2020

Case brief

AI extract

What is this about?

In a cheque dishonour case, the High Court set aside the trial court's acquittal of the accused under Section 256(1) Cr.P.C., which was passed due to the complainant's repeated absenteeism. The Court granted the complainant a single opportunity to adduce evidence in the trial court.

What did the court decide?

The impugned order of acquittal is set aside; the trial is restored to its file with a direction for parties to appear on 15.12.2023 to examine the complainant.

A.J. Viju Vs P.P.Shamsheer — Cheque Dishonour | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

FRIDAY, THE 2ND DAY OF JUNE 2023 / 12TH JYAISHTA, 1945

¶5

CRL.A NO. 13 OF 2020

¶6

AGAINST THE ORDER DATED 14.06.2018 IN S.T.C NO.169/2017 OF JUDICIAL MAGISTRATE

¶7

OF FIRST CLASS -IV, KANNUR.

¶8

APPELLANT/COMPLAINANT:

¶9

A.J. VIJU,
AGED 38 YEARS,
RESIDING AT SHANTHI NILAYAM,
KANNOTHUMCHAL, CHOVVA, KANNUR-670006.

¶10

BY ADVS.
 P.U.SHAILAJAN
 SRI.M.SURESH KUMAR
 SRI.V.SREEJITH (K/1398/2000)
 SMT.VIDYA KURIAKOSE

¶11

RESPONDENTS / ACCUSED & STATE:

¶12

1P.P.SHAMSHEER,
S/O. M.MUHAMMED,
RESIDING AT “SHAMSI NIVAS”, AYIKKARA KILASHI,
KANNUR HQ HOSPITAL P.O, KANNUR DISTRICT,
PIN-670 017.

¶13

2STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
PIN-682 031.

¶14

BY ADVS.
 SRI.ABDUL RAOOF PALLIPATH
 SRI.K.R.AVINASH (KUNNATH)

¶15

THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 02.06.2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

CRL.A NO.13/2020

¶17

JUDGMENT

¶18

Dated this the 02^nd day of June, 2023.

¶19

The appeal on hand is originated from an order passed by Judicial First Class Magistrate Court-IV, Kannur (for short, ‘the trial court’) on 14.06.2018 in S.T.C No.169/2017. The appellant is the complainant in the prosecution launched as STC No.169/2017 under Section 142 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I Act’) alleging commission of an offence by the accused under Section 138 N.I Act. The complainant was absent when the case was posted for evidence and therefore the trial court acquitted the accused under Section 256 (1) of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’).

¶20

The aggrieved complainant has approached this Court in the appeal on hand. The grievance of the complainant was that the accused was also absent on all posting dates. According to him, the non-appearance of the complainant or his counsel to adduce evidence was not willful but due to some personal reasons.

¶21

According to the learned counsel for the respondent, the complainant failed to appear before the trial court on several

¶22

CRL.A NO.13/2020

¶23

postings and therefore, he can only be taken as a person not vigilant in prosecuting his case. He canvasses for maintaining the judgment assailed in the appeal.

¶24

It is noticed from the impugned order that the complaint was posted on 25.04.2018 for adducing evidence by the complainant. Both complainant and accused were absent on that day. Therefore, the court adjourned the matter. On 26.04.2018 and 14.05.2018, the succeeding posting dates also the complainant was not present.

¶25

Therefore, the case was posted to 14.06.2018 as last chance. On that day also, complainant did not turn up. Therefore, the court has passed an order of acquittal of the accused under Section 256(1) Cr.P.C by the impugned order.

¶26

True that the complainant failed to attend the court on four occasions when his case was posted specifically for adducing his evidence. The complainant in the appeal has projected the reason for his absence before the trial court as personal.

¶27

Expediency of justice demands to grant a single opportunity to the complainant to adduce evidence and therefore, the impugned order is required to be set aside.

¶28

CRL.A NO.13/2020

¶29

¶30

In the result, the appeal is allowed and the impugned

¶31

order is set aside. The trial court shall restore STC No.169 of 2017 back to its file.

¶32

The complainant and the accused shall appear before the trial court on 15.12.2023. On appearance being made by both parties on that day, the case shall be posted by the trial court to a day at the convenience of the parties for examining the complainant. If any of the parties failed to turn up without any cogent reasons, that too supported by a reliable document, the trial court shall proceed to invoke the jurisdiction under Section 256 (1) Cr.P.C.

¶33

Sd/- MARY JOSEPH

¶34

JUDGE

¶35

A.J. Viju v. P.P.Shamsheer

Case brief

What is this about?

What did the court decide?

A.J. Viju v. P.P.Shamsheer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ashokan Vs State of Kerala

Harikumar, Vs State of Kerala

Nirmala Vs Dhanya

A.J.Viju Vs P.P.Shamsheer

Sanal Kumar, Vs Sunil

Maragatham @ Chinnathanga Vs State of Kerala