Jafer Salih Muhammed vs Ponnu C.K
2023 Latest Caselaw 10950 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
           THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                     CRL.APPEAL NO. 457 OF 2023
 AGAINST THE ORDER DATED 12.05.2022 IN S.T.NO.578/2019 OF
        JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOYILANDY
          (Crl.L.P. 242/2022 OF HIGH COURT OF KERALA)
APPELLANT/COMPLAINANT:

            JAFER SALIH MUHAMMED
            AGED 33 YEARS, S/O KUROOLIKUNI MUHAMMED, DEEPTI
            HOUSE, KATALUR P.O., KOYILANDI TALUK, THROUGH
            POWER OF ATTORNEY HOLDER P.V. ALIKKUTTY, S/O
            KUNHABDULLA HAJI, AGED 68 YEARS, RAROTH HOUSE,
            KATALUR P.O., KOYILANDI TALUK, KOZHIKODE, PIN -
            673529.

            BY ADV ZUBAIR PULIKKOOL



RESPONDENTS/ACCUSED/STATE:

    1       PONNU C.K.
            AGED 45 YEARS
            S/O KARUNAN, KUNHIPARAMBATH HOUSE, PALAYADNADA
            P.O., IRINGAL, VADAKARA TALUK, KOZHIKODE
            DISTRICT, PIN - 673529.

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

            BY ADVS.
            R1 BY REEHA KHADER K
            R1 BY BELKEES K.V.
            R1 BY ANJALY JIMMICHAN
            R2 BY SMT. SEENA C. PUBLIC PROSECUTOR



     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
26.10.2023,    THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
                               :2:
Crl.Appeal No.457 of 2023


                   P.G. AJITHKUMAR, J.
  -----------------------------------------------------------
                Crl.Appeal No.457 of 2023
  -----------------------------------------------------------
           Dated this the 26th day of October, 2023


                            JUDGMENT

The complainant in S.T.No.578 of 2019 on the file of

the Judicial First Class Magistrate Court, Koyilandy, has filed

this appeal under Section 378(4) of the Code of Criminal

Procedure, 1973, after obtaining leave to appeal.

2. Heard the learned counsel for the appellant, the

learned counsel for the 1st respondent and the learned

Public Prosecutor.

3. The appellant filed a complaint alleging offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881. A cheque for Rs.5 lakhs was said to have been

issued by the 1st respondent in discharge of the debt owed by

him to the appellant and when the cheque was presented for

encashment, the same was returned by the banker for want

of sufficient fund in the account of the 1 st respondent. It was

alleged that despite receiving notice, the 1 st respondent failed

to pay the amount due under the cheque.

Crl.Appeal No.457 of 2023

4. On a perusal of the copy of the proceedings in

S.T.No.578 of 2019, which was placed on record by the

appellant, it is seen that the learned Magistrate recorded

plea of the 1st respondent on 11.03.2022 and as he denied

the accusation, the case was listed for recording evidence

on 01.04.2022. On that date, the appellant did not turn up,

however, an application for excusing his absence was filed.

The case was therefore scheduled for recording evidence on

12.05.2022. On that day, the appellant did not turn up and

hence the Magistrate acquitted the appellant as per the

order dated 12.05.2022, which reads,-

"2. Complainant absent. Accused present. Case posted for the evidence of complainant. No petition filed by the complainant for adjournment of evidence. As there is no reason for adjourning the evidence, I am of the view that complainant is not intending to proceed with the case. Hence complaint is dismissed and accused is acquitted U/s.256 of Cr.P.C."

5. The learned counsel for the appellant would

submit that all along the appellant had been appearing

before the learned Magistrate, but on account of his

absence on a single occasion, i.e., on 12.05.2022, the

learned Magistrate acquitted the accused, which is illegal. It

Crl.Appeal No.457 of 2023

is alleged that by acquitting the accused on 12.05.2022

there occurred denial of a reasonable opportunity to the

appellant.

6. The learned counsel for the 1st respondent, on

the other hand, would submit that when the case was

adjourned to 01.04.2022, the learned Magistrate instructed

the appellant to be present on 12.05.2022. When such a

last chance was given and the appellant failed to appear

before the court, the learned Magistrate is justified in

acquitting the accused under the provisions of Section

256(1) of the Code. The learned counsel appearing for the

1st respondent would accordingly canvas for a dismissal of

the appeal.

7. It is true that Section 256(1) of the Code

empowers a Magistrate to acquit an accused in the event of

non-appearance of the complainant. That does not mean

that absence of the complainant on a single occasion shall

result in acquittal of the accused. When a criminal

prosecution is initiated, it shall ordinarily be culminated on a

verdict on merits.

Crl.Appeal No.457 of 2023

8. In Rohin Thapa v. Rohit Dora [(2019) 7 SCC

359] the Apex Court held that ordinarily, a litigation shall

be decided based on adjudication on the merits of the

contentions of the parties. Litigation should not be

terminated by default, either of the plaintiff or the

defendant. The cause of justice does require that as far as

possible, adjudication be done on merits. In Kozhikkara

Veettil Saidalavi (died) and others v. P.B.Abdul

Hameed and others [2022 (1) KHC 13] this Court took

a view that disposal of litigations on merits is a requirement

of law, unless there is sufficient reason to deviate from it.

The matters involved in those decisions were civil disputes.

But the aforesaid principle is equally applicable to criminal

matters as well. It is therefore appropriate that in the

present case a chance is given to the appellant to get a

decision on merits.

9. Viewed in the light of the law laid down in the

aforesaid decisions, I am of the view that this is a case

where there occurred denial of opportunity to the appellant

and thereby miscarriage of justice. The learned Magistrate

should have given a further opportunity to the appellant to

Crl.Appeal No.457 of 2023

adduce evidence and thereby to render a decision on

merits. In the circumstances, I am of the view that the

order dated 12.05.2022 by which the learned Magistrate

acquitted the 1st respondent is liable to be set aside.

The appeal is accordingly allowed. The learned

Magistrate is directed to restore S.T.No.578 of 2019 on file

and proceed with it in accordance with law. The parties

shall appear before the learned Magistrate on 22.11.2023.

Sd/-

P.G.AJITHKUMAR JUDGE dkr