M/S.Sree Gokulam Chits And ... vs C.N.Hashim
2021 Latest Caselaw 3979 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

  WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                        CRL.A.No.2051 OF 2006

    AGAINST THE ORDER DATED 05-08-2006 IN CMP 3662/2006 (ST
     No.3093/2005) ON THE FILES OF THE JUDICIAL FIRST CLASS
                 MAGISTRATE -I, SULTHANBATHERY



APPELLANT/ COMPLAINANT :

             M/S.SREE GOKULAM CHITS AND FINANCE CO.(P)LTD,
             KIZHAKKEBAGATH COMPLEX, SULTAN BATHERY - REP. BY
             THEIR AUTHORIZED REPRESENTATIVE SHRI. V.T.MANOJAN,
             AGED 35 YEARS, S/O. T.P.APPUTTY,
             RESIDING AT 'TEJUS', PANTHEERANKAVU POST,
             KODAL AMSOM, KAILAMADOM DESOM, KOZHIKODE.

             BY ADV. SRI.GEORGE ABRAHAM

RESPONDENT/ ACCUSED :

      1      C.N.HASHIM, S/O. ABOO HAJI,
             SHAMNAZ HOUSE, ELIMI ROAD, KALPETTA,
             WAYANAD DISTRICT.

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

             R2 BY PUBLIC PROSECUTOR ADV.DHANIL M.R.


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A.No.2051 OF 2006

                                   2




                            JUDGMENT

Dated this the 3rd day of February 2021

This appeal is preferred against the judgment dated

05.08.2006 in S.T.No.3093/2005 on the files of the Judicial First

Class Magistrate's Court-I, Sulthanbathery. By the impugned

judgment, the learned Magistrate rejected an application for

condoning the absence of the complainant on 05.08.2006 and

thereafter acquitted the accused for non-appearance of the

complainant as per Section 256 of the Cr.P.C. Leave to file the

appeal was granted on 17.10.2006.

2. S.T.No.3093/2005 on the files of the Judicial First

Class Magistrate's Court-I, Sulthanbathery arose out of

proceedings under Section 138 of the Negotiable Instruments Act

as the cheque bearing No.910167 dated 11.04.2005 issued by

the accused in favour of the petitioner was dishonoured and that

amount of Rs.1,48,474/- due under the cheque was not paid by

the accused.

CRL.A.No.2051 OF 2006

3. I have heard Adv.George Abraham, the learned

counsel for the appellant as well as Adv.Dhanil M.R., the learned

Public Prosecutor for the 2nd respondent. In spite of service of

notice on the first respondent, there was no representation.

4. The learned counsel for the appellant invited my

attention to the proceedings in S.T.No.3093/2005 as revealed

from the certified copy of the diary extracts produced as

Annexure A. A perusal of the said diary extracts shows that

though the cognizance was taken on 17.02.2006, the appellant

as complainant was present on most postings except two.

However, on 05.08.2006, when the case was posted for evidence

as a last chance, due to the absence of the complainant, the

accused was acquitted under Section 256 of the Cr.P.C. after

rejecting the application for condoning the absence of the

complainant.

5. It is the essential attribute of a legal system to

provide a judgment on merits and not on technicalities. However,

in cases where there is a purposeful attempt to delay the CRL.A.No.2051 OF 2006

proceedings, courts are certainly vested with the powers to acquit

the accused for non-representation of the complainant. Taking

note of the circumstances arising in the case, I am of the view

that the learned Magistrate was not justified in refusing an

adjournment as sought for by the learned counsel for the

appellant in the court below and acquitting the accused. The

present was not an instance where such rigid principles of

adjournment and refusal should have been resorted to.

6. The scope of Section 256 of the Cr.P.C. does not

contemplate an acquittal of the accused for every absence. On

the other hand, though the Section provides power to the court

to acquit the accused due to non-prosecution, the said power

ought not to be used in a callous and or random manner without

any objectivity. The records produced in this case clearly show

that though the complaint was filed on 22.11.2005, summons

was issued only on 17.02.2006 and the accused was released on

bail only on 21.06.2006. On the next posting date itself, the

learned Magistrate acquitted the accused for non-prosecution.

On an appreciation of the facts and circumstances CRL.A.No.2051 OF 2006

arising in the case, I am of the view that the impugned order is

not legally correct and is liable to be set aside. Hence, I set aside

the order dated 05.08.2006 in S.T.No.3093/2005 on the files of

the Judicial First Class Magistrate's Court-I, Sulthanbathery and

restore the case back to file. The parties shall appear before the

Magistrate's Court on 22.03.2021 and in case the accused does

not appear, fresh summons shall be issued. Registry is directed

to transmit the records of the case to the Subordinate Court at

the earliest.

The appeal is allowed as above.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM