Kerala High Court
Sreekumar vs S.K.Valsalan on 12 April, 2024
Crl. Appeal No. 2382/2007 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.A NO. 2382 OF 2007
ORDER DATED 12.05.1999 IN ST NO.1282 OF 1998 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II,NEDUMANGAD
APPELLANT/COMPLAINANT:
SREEKUMAR, KARIMPALA VEEDU,
ANAD P.O., NEDUMANGAD,, THIRUVANANTHAPURAM.
BY ADVS.
SRI.T.A.UNNIKRISHNAN
SRI.K.SATHEESH KUMAR
RESPONDENTS/ACCUSED & STATE:
1 S.K.VALSALAN, SREENILAYAM,
KULAPPADA P.O., NEDUMANGAD.
2 STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADVS.
SRI. SANAL. P. RAJ, PUBLIC PROSECUTOR
R1 BY SRI. C.A. CHACKO
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.04.2024, THE COURT ON
12.04.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No. 2382/2007 :2:
'C.R'
JOHNSON JOHN, J.
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Crl. Appeal No. 2382 of 2007
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Dated this the 12th day of April, 2024.
JUDGMENT
The appellant is the complainant in S.T. No. 1282 of 1998 of
Judicial First Class Magistrate Court-II, Nedumangad and he is
challenging the order dated 12.05.1999, whereby the accused was
acquitted of the offence under Section 138 of the Negotiable Instruments
Act, 1881 ('NI Act' for short) under Section 256 Cr.P.C. on the ground
that the complainant was not present either in person or by Pleader.
2. Heard Sri. T.A. Unnikrishnan, the learned counsel for the
appellant, Sri. C.A. Chacko, the learned counsel for the first respondent
and Sri. Sanal P. Raj, the learned Public Prosecutor.
3. The learned counsel for the appellant argued that the learned
Magistrate had committed a grave illegality in acquitting the accused
without affording the appellant an opportunity to explain the reason for
his absence. It is pointed out that on 17.04.1999, the complainant was
present and the accused was absent and hence, the case was posted to
30.04.1999 for return of the acknowledgment card regarding the service
of summons to the accused and on 30.04.1999, the case was adjourned
by notification to 12.05.1999 and on 12.05.1999, the impugned order
was passed acquitting the accused under Section 256 Cr.P.C for the
reason that the complainant was absent and there was no representation
for the complainant.
4. It is pointed out that on 12.05.1999, the case was posted for
the appearance of the accused and the presence of the complainant was
not necessary on that day and that the complainant was present on all
other previous postings. It is further pointed out that on 30.04.1999,
there was no sitting and the case was adjourned by notification to
12.05.1999; but, it was wrongly noted as 13.05.1999 and that the
appellant/complainant was prosecuting the case with utmost diligence
and all earnestness and the learned Magistrate passed the impugned
order of acquittal in a mechanical manner by using a printed form
without any application of mind.
5. The impugned order of the learned Magistrate in the printed
form reads thus:
"The case was called on for hearing today to which it had been
posted/adjourned.
The complainant not being present either in person or by pleader
the accused is acquitted under section 256, Criminal Procedure Code."
6. The learned Magistrate passed the impugned order by
exercising the power under Section 256 Cr.P.C and for convenience,
Section 256 Cr.P.C is extracted below:
"256. Non-appearance or death of complainant.--
(1) If the summons has been issued on complaint, and on the day
appointed for the appearance of the accused, or any day subsequent
thereto to which the hearing may be adjourned, the complainant does
not appear, the Magistrate shall, notwithstanding anything
hereinbefore contained, acquit the accused, unless for some reason
he thinks it proper to adjourn the hearing of the case to some other
day:
Provided that where the complainant is represented by a pleader or
by the officer conducting the prosecution or where the Magistrate is
of opinion that the personal attendance of the complainant is not
necessary, the Magistrate may, dispense with his attendance and
proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply
also to cases where the non-appearance of the complainant is due to
his death"
7. In Bijoy v State of Kerala (2016 (2) KLT 427), this Court,
while dealing with Section 256(1) Cr.P.C, held thus:
"9. The Magistrate in complaint cases should not dismiss the
complaint and acquit the accused by calling the case immediately. Where
the case is fixed for appearance of both parties the complainant and
accused is represented by lawyers, rejection of the application of the
complaint's lawyer without recording the reason is illegal. In such
situation, Court should record the reason for his absence and set the law
in motion and direct the complainant to appear before Court in person on
a particular date for the enquiry. If after giving such opportunity the
complainant remains absent and not obey the directions issued by the
Court, dismissal of the complaint under such circumstances is proper. If
there is sufficient reason for his absence an order passed against him in
his absence will vitally affect him and the consequence will be serious. If
the Magistrate subsequently discovers that there had been good reason
for the absence of the complainant, the Magistrate has no power to
correct that mischief. In order to avoid this embarassing situation it is not
proper to throw out the case in a hurry manner, when the complainant
states his bona fides. Considering the facts and circumstances of the case,
it is necessary to give a chance to the complainant to prove his case in
the Trial Court."
8. It is well settled that the Magistrate can invoke the power under
Section 256 Cr.P.C only after arriving at a definite conclusion that the
complainant no longer desires to prosecute the complaint and the said
power is to be exercised judicially and that the same cannot be
indiscriminately exercised whimsically and mechanically for the statistical
purposes of disposal.
9. In this case, the complainant was present on 17.04.1999 and
the case was posted for service of summons to the accused to
30.04.1999 and on 30.04.1999, the case was adjourned by notification
to 12.05.1999. It is pertinent to note that on the date of the impugned
order, the case was not posted for the appearance of the complainant
and there was also no direction to the complainant to be positively
present on 12.05.1999. Therefore, it is clear that the learned Magistrate
has acquitted the accused without giving a fair opportunity to the
complainant to prosecute the complaint and therefore, the order of the
Magistrate is unreasonable and irregular and the same has caused
miscarriage of justice warranting interference by this Court.
In the result, this appeal is allowed as follows:
1. The impugned order is set aside.
2. S.T. No. 1282 of 1998 is restored to file.
3. The learned Magistrate is directed to dispose of the complaint
in accordance with law.
4. The appellant and the 1st respondent are directed to appear
before the learned Magistrate on 20.05.2024.
5. As the complaint is of the year 1998, the learned Magistrate
shall make an endeavour to dispose of the case as expeditiously
as possible.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
