Kerala High Court
Joseph Dasan vs State Of Kerala on 31 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
CRL.A NO. 1741 OF 2023
ORDER DATED 06.06.2023 IN S.T. NO.76 OF 2020 OF JUDICIAL
MAGISTRATE OF FIRST CLASS - V, KOLLAM
ARISING FROM: ORDER DATED 17.10.2023 IN Crl.L.P. NO.557
OF 2023
APPELLANTS/COMPLAINANT:
JOSEPH DASAN
AGED 47 YEARS
S/O.DASAN, KATTUPURAYIDOM, ARAVILA, KAVANADU
(PO), KOLLAM DISTRICT., PIN - 691003
BY ADV.
N.SUNIL JOSEPH
RESPONDENTS:STATE & ACCUSED
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031
2 SATHYAPRAKASH
PATTANAYIL VEEDU, THEKKUMBHAGOM, CHAVARA,
KOLLAM DISTRICT., PIN - 691503
SMT.PUSHPALATHA M K - SR. GP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2
CRL.A NO. 1741 OF 2023
P.G. AJITHKUMAR, J.
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Crl.Appeal No.1741 of 2023
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Dated this the 31st day of May, 2024
JUDGMENT
This is an appeal filed under Section 374(2) of the Code
of Criminal Procedure, 1973. The appellant, who was the
complainant in S.T.No.76 of 2020 on the files of the Court of
the Judicial Magistrate of the First Class - V, Kollam impugns
the order acquitting the accused in that case invoking the
provisions of Section 256(1) of the Code. Despite service of
notice, the 2nd respondent did not choose to appear before
this Court.
2. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
3. ST No.76 of 2020 arose on a complaint filed by the
appellant alleging that the cheque issued by the 2 nd
respondent in discharge of a legally enforceable debt was
returned unpaid by the bank for the reason that there was not
enough fund with his account and the notice demanding
CRL.A NO. 1741 OF 2023
payment was not honoured by him. The 2 nd respondent
appeared before the learned Magistrate and denied the
accusations for the reason that the appellant failed to appear
on several dates of posting, the 2 nd respondent was acquitted
by the impugned order on 06.06.2023.
4. The learned counsel for the appellant by placing
reliance on Annexure 1 and 2 would submit that the appellant
had sufficient reasons for his non-appearance before the
learned Magistrate on 06.06.2023 and also on the previous
dates of posting, and therefore the acquittal of the 2 nd
respondent is incorrect.
5. A copy of the proceedings in ST No.76 of 2020 is
placed on record. It is seen from it that inability of the
appellant to appear before the court on account of his physical
inability was reported to the court on 10.05.2022. Never
thereafter the appellant appeared before the learned
Magistrate. It is seen from Annexure 1 that the appellant
sustained serious injuries in an incident occurred on
25.03.2021. He had to undergo treatment as an inpatient for
a few days. The 2 nd respondent did not chose to appear and
CRL.A NO. 1741 OF 2023
resist the contentions raised by the appellant.
6. It is true that the learned Magistrate listed the
matter on several occasions for recording evidence. Therefore
the presence of the appellant was required on those dates of
posting. However, from the materials on record, it is seen that
there was justification for the non-appearance of the appellant
on such dates of posting. It is apposite that a case initiated
alleging commission of a criminal offence is decided on its
merits. Since no gross negligence can be attributed on the
part of the appellant another opportunity is liable to be
afforded to the appellant to have a decision on merits.
In the circumstances, the impugned order is set aside by
allowing this appeal. The matter is remitted to the Judicial
Magistrate of the First Class-V, Kollam who shall restore the
matter on file and proceed with it in accordance with law. The
appellant shall appear before the learned Magistrate on
01.07.2024.
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
