Chemmannur Fashion Jewellers vs Rajan
2024 Latest Caselaw 27379 Ker

Kerala High Court

Chemmannur Fashion Jewellers vs Rajan on 11 September, 2024

Author: K.Babu

Bench: K. Babu

                                                      2024:KER:69933
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Crl.A No.84 of 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                      THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2024/20TH BHADRA, 1946
                            CRL.A NO. 84 OF 2024
AGAINST THE JUDGMENT DATED 16.10.2023 IN ST NO.1273 OF 2017
     OF JUDICIAL MAGISTRATE OF FIRST CLASS, SULTHANBATHERY

APPELLANT/COMPLAINANT:

                CHEMMANNUR FASHION JEWELLERS,
                DOOR NO. SBP VI/96A KOZHIKODE-MYSORE ROAD,
                S.BATHERY,
                REP. BY POWER OF ATTORNEY HOLDER,
                JIBIN MATHEW,
                S/O MATHEW,
                AGED 31 YEARS,
                KARIKKATTIL HOUSE,
                THAMPALAMMANNA POST,
                THIRUVAMBADY,
                KOZHIKODE,
                PIN - 673603

                BY ADVS.
                HEMALATHA
                BINU GEORGE
                AMANTA MATHEW



RESPONDENT/ACCUSED/STATE:

       1        RAJAN,
                AGED 55 YEARS,
                S/O DAMODARAN, MUNDIYANIKKAL HOUSE,
                PALLIKKUNNU POST, MUTTIL NORTH,
                VYTHIRI TALUK, WAYAND DISTRICT,
                PIN - 673576
                                                                  2024:KER:69933
                                           2
Crl.A No.84 of 2024


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

                BY ADV
                SRI.G.SUDHEER, PUBLIC PROSECUTOR


         THIS         CRIMINAL   APPEAL    HAVING   BEEN    FINALLY   HEARD    ON
11.09.2024,             THE   COURT   ON   THE   SAME      DAY   DELIVERED    THE
FOLLOWING:
                                                             2024:KER:69933
                                          3
Crl.A No.84 of 2024


                                      K.BABU, J.
                      --------------------------------------
                           Criminal Appeal No.84 of 2024
                      ---------------------------------------
                      Dated this the 11th day of September, 2024

                                     JUDGMENT

The challenge in this appeal is to the order dated 16.10.2023 in

ST No.1273/2017 passed by the Judicial First Class Magistrate

Court-I, Sulthan Bathery. The complainant is the appellant.

2. The complainant filed a complaint alleging offence

punishable under Section 138 of the Negotiable Instruments Act

against respondent No.1 before the Judicial First Class Magistrate

Court-I, Sulthan Bathery.

3. On 16.10.2023, the Judicial First Class Magistrate, Sulthan

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

ground that the complainant was absent.

4. Notice was served on the party respondent. He did not

turn up.

5. Heard.

6. The learned counsel for the appellant submitted that the 2024:KER:69933

non-appearance of the complainant on 16.10.2023 was not due to

any laches on the part of the complainant. It is submitted that due

to the personal inconvenience of the complainant, he entrusted his

lawyer to make an application, and his lawyer represented him. But

the Court refused to accept the request for adjourning the matter to

another day and acquitted the accused. The complaint was filed as

early as on 04.12.2017 and the complainant has been diligently

prosecuting the matter. The presence of the accused could be

procured only on 05.04.2023, after repeated Non-bailable warrants

and proceedings under Sections 82 and 83 of the Cr.PC.

7. It is evident that right from 04.12.2017 till 16.10.2023 the

complainant has been diligently prosecuting the matter.

8. Having regard to the ground canvassed by the complainant

this Court is of the view that the failure of the complainant to

appear before the Court on 16.10.2023 was not wilful and deliberate.

Therefore, the order acquitting the accused due to non-appearance

of the complainant on 16.10.2023 is liable to be set aside. In the

result, the order dated 16.10.2023 acquitting the accused in ST 2024:KER:69933

No.1273/2017 stands set aside. The complaint is restored to file.

The Trial Court shall proceed with the trial of the matter and

dispose of the same in accordance with law. The parties are

directed to appear before the Trial Court on 03.10.2024.

The Criminal Appeal is allowed as above.

Sd/-

K.BABU, JUDGE KAS