M/S.Sharma Marbles House vs Anil Thomas on 6 December, 2006

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 70 of 1999(A)



1. M/S.SHARMA MARBLES HOUSE
                      ...  Petitioner

                        Vs

1. ANIL THOMAS
                       ...       Respondent

                For Petitioner  :SRI.JOMY GEORGE

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice J.B.KOSHY

 Dated :06/12/2006

 O R D E R

J.B. KOSHY, J.

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CRL.APPEAL No. 70 of 1999

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Dated this the 6th day of December, 2006

Judgment

Appellant filed a complaint under section 138

of the Negotiable Instruments Act alleging that cheque

issued by the first respondent to the appellant was

dishonoured for insufficiency of funds. According to the

appellant, he has fulfilled the statutory formalities.

Records show that there were several postings and

complainant was present, but, on one day, complainant

applied for time. That was rejected and accused was

acquitted under section 256 (1) of the Code of Criminal

Procedure. On that day, it is stated that accused was

also absent. When accused was absent, presence of the

complainant was not absolutely necessary. It is settled

law that even though magistrate’s court has power to

acquit the accused for absence of complainant under

section 256 Cr.P.C., it should hot be done mechanically.

Here, in this case, accused was absent on the posting

date. In the above circumstances, accused should not have

been acquitted for the absence of the complainant.

Notice issued by this Court was not served. I am not

Crl.A.No.70/99 2

expressing any opinion regarding the merits of the

matter. There was appearance for the accused before the

court below.

In the above circumstances, the impugned order

is set aside as passed without application of mind and

the matter is remanded for fresh consideration. The

magistrate should continue the proceedings and post the

case on 12.1.2007. Appellant should be present on that

day. Magistrate should also give intimation of the

posting of the case to the advocate appearing for the

accused.

Appeal is allowed by way of remand.

J.B.KOSHY

JUDGE

vaa

Crl.A.No.70/99 3

J.B. KOSHY, J.

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CRL.APPEAL No.70/99

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Judgment

Dated:6th December, 2006