IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 19 of 2003()
1. M. RAGHAVAN NAMBIAR, S/O. RAGHAVAN
... Petitioner
Vs
1. ASHRAF, BADARIYA CUT PIECE CENTRE,
... Respondent
2. THE STATE OF KERALA, REPRESENTED
For Petitioner :SRI.PHILIP M.VARUGHESE
For Respondent :SRI.C.MURALIKRISHNAN (PAYYANUR)
The Hon'ble MR. Justice K.THANKAPPAN
Dated :24/09/2007
O R D E R
K.THANKAPPAN, J.
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CRL. APPEAL NO. 19 OF 2003
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Dated this the 24th day of September, 2007
JUDGMENT
This appeal is filed against the judgment in C.C. No.48 of 2002 on
the file of the Judicial First Class Magistrate’s Court III, Kannur.
2. The appellant filed the complaint before the court below alleging
that the first respondent – accused committed offence punishable under
Section 138 of the Negotiable Instruments Act, 1881. The court below
took cognizance of the complaint, served notice on the accused and posted
the case to 2.7.2002. On 2.7.2002, finding that the complainant was
absent, the trial court acquitted the accused under Section 256(1) Cr.P.C.
3. This Court heard the learned counsel appearing on either side.
4. Learned counsel appearing for the appellant submits that
originally the complaint was filed before the Judicial First Class
Magistrate’s Court, Payyannur and subsequently the case was made over to
CRL.APPEAL NO.19/2003 2
the Judicial First Class Magistrate’s Court III, Kannur. Learned counsel
submits that though the transfer of the case was notified on the notice
board, it was without notice to the counsel appearing for the appellant in
the trial court and that the clerk of the counsel also failed to note the same.
Counsel further submits that the posting of the case was also without
notice to the appellant and hence, the appellant – complainant could not
appear before the trial court.
5. A reading of the impugned order would show that the learned
trial Magistrate had not complied with the dictum laid down by this Court
in the decisions reported in Don Bosco v. Partech Computers, 2005(2)
K.L.T. 1003 and G.F.S. Chit & Loans (P) Ltd. v. Rajesh, 2006(3)
K.L.T. 825. In the above two judgments, this Court had categorically
held that unmerited disposal of complaints will affect dispensation of
justice. Further, the Apex Court in the decision reported in Associated
Cement Co. Ltd. v. Keshvanand, 1998(1) K.L.T. 179 (SC) held that on
order under Section 256(1) Cr.P.C. shall be passed only under the
following circumstances:
“First is, if the court thinks that in a
situation it is proper to adjourn the hearing then
the magistrate shall not acquit the accused.
Second is, when the magistrate considers that
personal attendance of the complainant is notCRL.APPEAL NO.19/2003 3
necessary on that day the magistrate has the
power to dispense with his attendance and
proceed with the case. When the court notices
that the complainant is absent on a particular day
the court must consider whether personal
attendance of the complainant is essential on that
day for the progress of the case and also whether
the situation does not justify the case being
adjourned to another date due to any other
reason. If the situation does not justify the case
being adjourned the court is free to dismiss the
complaint and acquit the accused. But if the
presence of the complainant on that day was quite
unnecessary then resorting to the step of axing
down the complaint may not be a proper exercise
of the power envisaged in the section. The
discretion must therefore, be exercised judicially
and fairly without impairing the cause of
administration of criminal justice.”
6. In the above circumstances, this Court is of the view that the
order of the trial court is liable to be set aside. The impugned order is
accordingly set aside and the matter is remanded to the trial court for fresh
disposal as per law.
The Crl. Appeal is allowed by way of remand. The parties shall
appear before the trial court on 17.11.2007.
(K.THANKAPPAN, JUDGE)
sp/
CRL.APPEAL NO.19/2003 4
K. THANKAPPAN, J.
CRL.A. NO.19/2003
JUDGMENT
24th SEPTEMBER, 2007