Kerala High Court
Sree Gokulam Chit And Finance Co.(Pvt) ... vs Vanaja Rajendran on 15 July, 2017
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 5TH DAY OF DECEMBER 2017/14TH AGRAHAYANA, 1939
CRL.A.No. 866 of 2017 () IN Crl.L.P..366/2017
------------------------------------------
ST 7/2016 of J.M.F.C.-II,THODUPUZHA DATED 15-07-2017
Crl.L.P. 366/2017 of HIGH COURT OF KERALA DATED 20-09-2017
APPELLANT(S)/COMPLAINANT:
------------------------
SREE GOKULAM CHIT AND FINANCE CO.(PVT) LTD.
HAVING ITS CORPORATE OFFICE AT SREE GOKULAM TOWERS,
NO. 66,ARKOT ROAD, CHENNAI, TAMIL NADU,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
JOMY M.C S/O. CHACKO, AGED 44 YEARS,
SENIOR BUSINESS MANAGER OF THE COMPANY
BY ADV. SRI.MAHESH V RAMAKRISHNAN
RESPONDENT(S)/ACCUSED & STATE:
------------------------------
1. VANAJA RAJENDRAN
AGED 46 YEARS, THAZHATHETHOTTIYIL HOUSE,
THODUPUZHA, IDUKKI DIST 685 585
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031
R1 BY ADV. SRI.T.J.MICHAEL
BY PUBLIC PROSECUTOR SRI. AMJAD ALI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05-12-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CR
B. SUDHEENDRA KUMAR, J.
.....................................................
Crl. Appeal No. 866 of 2017
.....................................................
Dated this the 5th day of December, 2017
JUDGMENT
The appellant is the complainant before the court below in S.T. No. 7 of 2016. The offence alleged is the offence under Section 138 of the Negotiable Instruments Act. The above case was posted to 15-7-2017 before the court below. On that date, the complainant was not ready to adduce evidence. In the said circumstances, the court below acquitted the accused under Section 256 (1) Cr.P.C.
2. Heard.
3. The learned counsel for the appellant has argued that the court below ought not have acquitted the accused under Section 256 (1) Cr.P.C. when the complainant was -: 2 :- Crl. R.P. No.866 of 2017 present before the Court and in the said circumstances, the order impugned cannot be sustained. By order dated 15-7- 2017, the learned Magistrate acquitted the accused under Section 256 (1) of Cr.P.C. The order of the court below is extracted hereunder:-
"Accused is absent, applied. Complainant present. Counsel for complainant applied stating that document is to be received. No evidence is adduced inspite of chances given on 5-11-16, 25-03-17, 15-07-17 (last chance) and today (last chance with no further time). There is wilful default on the part of the complainant. His presence without adducing any evidence is equal to his absence. Therefore, the accused is acquitted under Section 256 (1) Cr.P.C."
4. It is clear from the above order that the Court below acquitted the accused under Section 256 (1) Cr.P.C. even when the complainant was present before the Court. Chapter XX of Cr.P.C. deals with the trial of summons -: 3 :- Crl. R.P. No.866 of 2017 cases by Magistrates.
5. Section 256 of Cr.P.C. reads as follows:-
"256. Non-appearance or death of complainant:- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day;
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
2. The provisions of sub-section (1) shall, so far as may be apply also to cases where the non-appearance of the complainant is due to his death".-: 4 :- Crl. R.P. No.866 of 2017
6 Section 256 of Cr.P.C. provides for disposal of a complaint in default. A plain reading of the provisions of Section 256 (1) Cr.P.C. makes it clear that the Magistrate has no jurisdiction to acquit the accused under Section 256 (1) Cr.P.C. when the complainant is present before the Court. The Court is having the discretion under Section 256 (1) Cr.P.C. to acquit the accused when the complainant is not present before the Court. However, the court lacks jurisdiction to acquit the accused under Section 256(1) Cr.P.C., when the complainant is present before the court. If the Court acquits the accused under Section 256 (1) Cr.P.C. when the complainant is present before Court, there can be no doubt that the said order of acquittal is illegal and incorrect, being contrary to the provisions of law.
7. In this case, the complainant was present before the court below. However, the learned Magistrate, -: 5 :- Crl. R.P. No.866 of 2017 ignoring the purport of the provisions under Section 256 (1) Cr.P.C., acquitted the accused erroneously holding that the presence of the complainant without adducing any evidence is equal to his absence. The law does not permit the court to acquit the accused under Section 256 (1) Cr.P.C. if the complainant is present before the court, even if the complainant is not ready to adduce evidence. Therefore, once the complainant is present before the Court, the question of acquitting the accused under Section 256 (1) Cr.P.C.does not arise at all. In the present case, since the learned Magistrate acquitted the accused when the complainant was present before the Court, the order passed by the learned Magistrate cannot be said to be legal, proper and correct and consequently, the same cannot be sustained.
In the result, this appeal stands allowed, setting aside the order impugned and the matter is remitted to the court -: 6 :- Crl. R.P. No.866 of 2017 below for proceeding with the complaint afresh, in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the acquittal of the accused on 15-7-2017.
B. SUDHEENDRA KUMAR, JUDGE.
ani/