Satheesh P.Chandran Vs. Johny Thomas

Satheesh P.Chandran vs Johny Thomas

Type Court Judgment Court Kerala Decided Nov 12, 2010

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Citation: sooperkanoon.com/909054
Court: Kerala High Court
Judge: M.L. Joseph Francis, J.
Decided On: Nov 12, 2010
Case Number: Crl.A. No. 680 of 2004
Subject: BankingCriminal

Case Summary

AI-generated summary - not the official court judgment text.

[A.N. VENUGOPALA GOWDA J.] These writ petitions are filed under articles 226 and 227 of the Constitution of India, praying to quash the order dated 21.07.2010 passed in OS no. 293/1997 by the learned principal civil judge (Junior division) Kunigal as per Annexure-J and thereby to allow the applications filed by the ...

Key legal issue: BankingCriminal
Acts & sections: Negotiable Instruments Act - Section 138; Code of Criminal Procedure (CrPC) (Cr.P.C) - Section 256(1)

Parties & Advocates

Appellant / Petitioner

Satheesh P.Chandran

Advocate SRI.K.K.CHANDRAN PILLAI, Adv.

Respondent

Johny Thomas

Advocate SRI.VARGHESE C.KURIAKOSE, Adv.

Legal References

Acts: Negotiable Instruments Act - Section 138; Code of Criminal Procedure (CrPC) (Cr.P.C) - Section 256(1)

Excerpt

[a.n. venugopala gowda j.] these writ petitions are filed under articles 226 and 227 of the constitution of india, praying to quash the order dated 21.07.2010 passed in os no. 293/1997 by the learned principal civil judge (junior division) kunigal as per annexure-j and thereby to allow the applications filed by the petitioners under order vi rule-17 of the code of civil procedure in o.s no. 293/1997 and o.s no. 455/1998......the first respondent. 3. the learned counsel for the appellant submitted that when the case was posted for evidence on 18.8.2003, complainant could not be present before the court below as he was laid up due to illness and the complainant filed an application for adjournment through his counsel, which was rejected by the learned magistrate. t 4. under section 256 cr.p.c, three courses are open to the magistrate where the complainant is absent on the date of hearing; (i) to acquit the accused or (ii) adjourn the case for a future date or (iii) to dispense with the attendance of the complainant and proceed with the case. an order under section 256 of the code of criminal procedure, which operates as a final order barring a fresh complaint should be passed after proper application of mind and sound exercise of judicial discretion. the order should show the wide discretion that vested in the court had properly been exercised.5. since the complainant filed an application for adjournment through his counsel due to his illness, the acquittal of the accused for non-appearance of the complainant is not proper. under the above circumstances it would be just and reasonable to set aside the order of acquittal. 6. accordingly this appeal is allowed. the order in c.c.no. 804 of 2000 on the file of the judicial first class magistrate -ii, thodupuzha acquitting the accused under section 256(1) cr.p.c. is set aside. the learned magistrate is directed to proceed with the trial of the case in accordance with law. both parties are directed to appear before that court on 21.12.2010 for further proceedings.

Full Judgment

M.L. JOSEPH FRANCIS, J.

Crl.A. No. 680 of 2004

Dated this the 12th day of November, 2010

1. This appeal is filed by the complainant in C.C. No. 804 of 2000 on the file of the Judicial First Class Magistrate Court - II, Thodupuzha. That was a case filed by the complainant against the first respondent for the offence punishable under Section 138 of the N.I. Act involving a cheque for Rs. 65,000/- On 18.8.2003, the accused was acquitted under Section 256(1) Cr.P.C. as the complainant was not present in person even after no further time.

2. Heard learned counsel for the appellant and the learned counsel for the first respondent.

3. The learned counsel for the appellant submitted that when the case was posted for evidence on 18.8.2003, complainant could not be present before the court below as he was laid up due to illness and the complainant filed an application for adjournment through his counsel, which was rejected by the learned Magistrate. t

4. Under Section 256 Cr.P.C, three courses are open to the Magistrate where the complainant is absent on the date of hearing; (i) to acquit the accused or (ii) adjourn the case for a future date or (iii) to dispense with the attendance of the complainant and proceed with the case. An order under Section 256 of the Code of Criminal Procedure, which operates as a final order barring a fresh complaint should be passed after proper application of mind and sound exercise of judicial discretion. The order should show the wide discretion that vested in the Court had properly been exercised.

5. Since the complainant filed an application for adjournment through his counsel due to his illness, the acquittal of the accused for non-appearance of the complainant is not proper. Under the above circumstances it would be just and reasonable to set aside the order of acquittal.

6. Accordingly this appeal is allowed. The order in C.C.No. 804 of 2000 on the file of the Judicial First Class Magistrate -II, Thodupuzha acquitting the accused under Section 256(1) Cr.P.C. is set aside. The learned Magistrate is directed to proceed with the trial of the case in accordance with law. Both parties are directed to appear before that Court on 21.12.2010 for further proceedings.

Same Court & Year Kerala · 2010 Same Parties Satheesh P.Chandran vs Johny Thomas Same Subject BankingCriminal Same Judge M.L. Joseph Francis, J. Acts & Sections Negotiable Instruments Act - Section 138; Code of Criminal Pr...

BankingCriminal In accordance with law judicial discretion criminal procedure magistrate court fresh complaint final order