Allowed

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

Kerala HC2 Jun 2023CRL.A/1498/2019

Case brief

AI extract

What is this about?

In a criminal appeal against acquittal for cheque dishonour, the High Court allowed the complainant's appeal and granted a single fresh opportunity to adduce evidence, directing the lower court to restore the file and summon both parties for hearing.

What did the court decide?

Impugned order set aside; file restored for 08.01.2024 hearing if parties appear; Section 256(1) appeal to be invoked if absent.

A.J.Viju Vs P.P.Shamsheer — 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 MRS. JUSTICE MARY JOSEPH

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

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CRL.A NO. 1498 OF 2019

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AGAINST THE ORDER DATED 14.06.2018 IN STC NO.172/2017 OF JUDICIAL MAGISTRATE OF

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FIRST CLASS -IV, KANNUR

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APPELLANT/COMPLAINANT:

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

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

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RESPONDENTS/ACCUSED & STATE:

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

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2STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN-682031,
BY ADVS.
 SRI.ABDUL RAOOF PALLIPATH
 SRI.K.R.AVINASH (KUNNATH)

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

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CRL.A NO.1498/2019

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JUDGMENT

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

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The appeal on hand is directed against an order passed by Judicial First Class Magistrate Court-IV, Kannur (for short, ‘the court below’) on 14.06.2018 in S.T.C No.172/2017. The appellant is the complainant in the above case, registered on the files of the court below, on the basis of a complaint filed under Section 142 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I Act’) alleging commission of an offence under Section 138 N.I Act. For failure of the complainant to turn up and adduce evidence inspite of

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a number of postings given, the court below has acquitted the accused under Section 256 (1) of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’).

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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 complainant or his counsel did not turn up before the court below to adduce evidence on account of some personal reasons.

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CRL.A NO.1498/2019

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The learned counsel for the respondent vehemently opposed the appeal. According to him, several postings have already been given to the complainant to adduce evidence but on all such dates, he was absent and therefore, he can be taken as not vigilant in prosecuting the matter.

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It is noticed from the impugned order that the case was posted for adducing evidence by the complainant on 19.01.2018. On that day, both the complainant and the accused were absent. Thereupon, the case was adjourned to 27.03.2018 and further to 07.05.2018. The complainant did not attend the court below on those days to adduce evidence.

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Therefore, as a last chance, the case was posted on 14.05.2018 for evidence. The complainant was absent on that day also. Therefore, the court below has passed the impugned order under Section 256(1) Cr.P.C.

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True that the complainant did not avail any of the opportunities granted by the court below for adducing evidence. The reason for his failure to appear was stated as personal. The exact reason was not stated by him. Nevertheless, the complainant is now before this Court seeking for a single further opportunity to

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CRL.A NO.1498/2019

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appear and adduce evidence. This Court finds in the interest of

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justice that a single opportunity can be granted to the complainant to contest his case on merits.

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In the result, the appeal is allowed. The impugned order

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is set aside. The court below is directed to restore STC No.172 of 2017 back to its file.

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Both parties shall appear before the court below on 08.01.2024. The court below shall fix a day at it’s convenience for examination of the complainant. If the complainant and the accused failed to turn up on 08.01.2024, the court below shall invoke jurisdiction under Section 256(1) Cr.P.C.

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 Sd/-

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MARY JOSEPH

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JUDGE

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

Case brief

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

Case brief

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