Aboobacker, S/O. Packer vs Balakrishnan, S/O. Imbichunhan
2021 Latest Caselaw 13772 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
    FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                     CRL.A NO.10 OF 2007
AGAINST THE JUDGMENT IN CC 316/2004 OF JUDICIAL MAGISTRATE OF
                    FIRST CLASS, KOYILANDY
APPELLANT/COMPLAINANT:

          ABOOBACKER, S/O.PACKER,
          PUTHIYEDATH THAZHE,
          ULLIYERI, KOYILANDY TALUK.
          BY ADV SRI.SANTHARAM.P


RESPONDENTS/ACCUSED & STATE:

    1     BALAKRISHNAN, S/O. IMBICHUNHAN,
          MARIYATHANKANDY, KUNNATHARA, KOYILANDY.
    2     STATE OF KERALA REP. BY
          PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
          ERNAKULAM.
          BY ADVS.
          SRI.K.P.SUDHEER
          SRI. M.S. BREEZ (SR.PUBLIC PROSECUTOR)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.A.No.10/2007                                   2



                                     JUDGMENT

Dated this the 2nd day of July, 2021

The appeal is filed under Section 378(4) of the Code of Criminal

Procedure. The appellant was the complainant in C.C.No.316 of

2004 on the files of the Judicial First Class Magistrate Court,

Koyilandy. Respondent No.1 was the accused in the court below.

The offence alleged against the accused was punishable under

Section 138 of the Negotiable Instruments Act.

2. The appellant hereinafter referred to as 'the complainant'

and respondent No.1 as 'the accused'.

3. The case of the complainant is as follows :

The accused borrowed a sum of Rs.40,000/- from the

complainant promising to repay the same within two months and in

discharge of the legally enforceable debt, the accused executed a

cheque in favour of the complainant. The cheque, when presented

for encashment, was dishonoured due to 'insufficiency of funds' in

the account of the accused. The complainant caused to send

statutory notice to the accused. The accused failed to pay the amount

due to the complainant.

4. The complainant preferred a complaint before the court

below which took cognizance of the offence alleged and summons

was issued against the accused.

5. Due to non appearance of the accused, the court below

issued warrant against him and even resorted to take steps under

Sections 82 and 83 of the Cr.P.C. On 23.8.2005, the accused

appeared before the court below and took bail.

6. Thereafter, the case was posted on 15.10.2005, 3.1.2006

and 7.4.2006. On 7.4.2006, the complainant was physically

incapacitated to appear before the court and he instructed his lawyer

to file an application seeking exemption. The lawyer filed application

seeking exemption. But, the court below rejected the application

seeking exemption preferred from the side of the complainant and

the accused was acquitted under Section 256(1) Cr.P.C.

7. The above referred order of acquittal is impugned in this

appeal.

8. Heard the learned counsel appearing for the complainant

and the learned counsel appearing for the accused.

9. The learned counsel for the complainant contended that

the complainant has been diligently prosecuting the complaint

against the accused and the accused was acquitted due to his non

appearance on 7.4.2006 even though an application seeking

exemption was filed. The learned counsel for the complainant

further submitted that the complaint was instituted long back in

2004 and the presence of the accused could not be procured till

23.8.2005. It is further submitted that the accused appeared before

the court after the court initiated steps under Sections 82 and 83 of

Cr.P.C. The learned counsel for the complainant contended that the

learned Magistrate adopted a hyper technical approach while

acquitting the accused due to non appearance of the complainant on

7.4.2006.

10. The learned counsel for the accused, per contra,

contended that the laches on the part of the complainant resulted in

the acquittal of the accused.

11. Going by the records of the case, it is seen that though

summons was ordered against the accused on 17.3.2004, it was after

the court below resorted to steps under Sections 82 and 83 of the

Cr.P.C. he appeared before the court on 23.8.2005. It is further seen

that till 7.4.2006, the complainant has been diligently prosecuting

the complaint. It is true that "no further time" was ordered for

evidence on the posting date prior to 7.4.2006. The definite case of

the complainant is that he was indisposed on 7.4.2006 which

prevented him from appearing before the court and give evidence

which is not successfully challenged by the accused. It is borne out

from the records that the complainant had submitted application

through his counsel seeking exemption.

12. I am of the considered view that the complainant could

establish that he had sufficient reason for non appearance on

7.4.2006. Having regard to the stake involved and all other attending

circumstances, this Court is of the view that the appeal is to be

allowed.

        In the result,

        (i)        The appeal is allowed.

        (ii)       The judgment dated 7.4.2006 passed by the Judicial First

Class Magistrate, Koyilandy dismissing the complaint and

acquitting the accused in C.C.No.316 of 2004 is set aside.

(iii) The complaint is restored to file.

(iv) The learned Magistrate shall proceed with the complaint

as per law.

(v) The parties shall appear before the court below on

4.10.2021.

Sd/-

K.BABU, JUDGE csl