BY AD v. SHAJI THANKAPPAN

VINEETH P.R AGED 35 YEARS VINEETH BHAVAN, EROOR WEST, NOW RESIDING AT PUTHENTHUNDIYIL HOUSE, KUNNARA, EROOR, THRIPUNITHARA., PIN - 682306 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: NIMA JACOB,PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 1167 OF 2023 2 K.BABU, J. -------------------------------------- CRL.A. NO. 1167 OF 2023 --------------------------------------- Dated this the 11th day of January, 2024 J U D G M E N T The challenge in this appeal is to the judgment dated 27.01.2023 passed in C.C.No.1478/2016 on the file of the Judicial First Class Magistrate Court (N.I Act Cases), Ernakulam acquitting respondent No.1 due to the non-appearance of the appellant/complainant. The case of the appellant is as follows:-

2. On 12.11.2015, the accused issued a cheque bearing No.319960 in favour of the appellant/ complainant, for an amount of Rs.54,364/- drawn on South Indian Bank Limited, Panampilly Nagar Branch towards a legally enforceable debt. The cheque was presented for encashment. It was dishonoured unpaid on 17.12.2015 due to insufficiency of funds in the account of the accused. The complainant caused to issue a lawyer’s notice on 18.01.2016 to the accused intimating about the dishonour of the cheque and demanding repayment of the amount covered by it. The CRL.A. NO. 1167 OF 2023 3 accused received the notice but, he failed to repay the amount. The complainant thereafter filed a complaint before the Judicial Magistrate of First Class (N.I Act Cases), Ernakulam. The Court took cognizance of the offence and issued summons to the accused. Though the complaint was filed in the year 2016, the presence of the accused could not be procured. The complainant has been diligently prosecuting the case. A non-bailable warrant was issued against the accused. The case was adjourned to 09.01.2023. On 23.11.2022, the accused surrendered before the Court. He was granted bail by the Court below. On 09.01.2023, the case was not called. The case was taken up on 21.01.2023 and notice was ordered to the complainant and posted on

27.01.2023 for evidence. The complainant did not receive the notice. On 27.01.2023, the Court below acquitted the accused as per Sec.256(1) of Cr.P.C.

3. Notice in the appeal was served on the accused. The accused did not turn up.

4.Heard the learned counsel for the appellant. CRL.A. NO. 1167 OF 2023 4

5. The learned counsel for the appellant submitted that the complainant has been diligently prosecuting the matter. It is submitted that originally, the case stood posted on 09.01.2023, but, it was advanced on the application of the accused to 23.11.2022 and thereafter the case was not called on 09.01.2023. The learned counsel submitted that he had not received information regarding the posting of the case on 21.01.2023 and on 27.01.2023. The notice issued to the complainant by the Court below was also not served on him.

6. The materials placed before the Court would show that though the complaint was filed in 2016, there were no effective postings. The case stood adjourned from time to time by notification. It was after seven years of the filing of the complaint that the presence of the accused could be procured. The learned counsel for the appellant submitted that the complainant was not given sufficient opportunity to lead evidence as he had no information regarding the posting of the case on 21.01.2023 and on 27.01.2023. The copy CRL.A. NO. 1167 OF 2023 5 of the proceedings would show that on 11.11.2022 the case was adjourned to 09.01.2023. The case was not called on 09.01.2023. This is evident from the copy of the proceedings produced by the appellant, which is extracted below:- 29-12-2021 10-01-2022 24-02-2022 12-04-2022 Complainant represented, issue summons afresh, take steps: 10-01-2022. Complainant not represented. For return of summos 24-02-2022 Complainant represented. For return of summons. 12-04-2022 Summons served. For the appearance of the accused. 24-05-2022 24-05-2022 No sitting Case Adjourned To 22-08-2022. 22-08-2022 05-09-2022 Complainant not represented. Accused absent not represented. For the appearance of the accused. No further time. 05-09- 2022 Complainant not represented. Accused absent not represented. Issue NBW. 11-11- 2022. 11-11-2022 Case Adjourned to. 09-01-2023. 23-11-2022 23-12-2022 21-01-2023 Advanced. Accused present. Copy served and Bail is granted to the accused. Plea read over to which accused pleaded not guilty and claimed trial. Considering the nature of used cleand the hefty sum of money involved in this case, this court finds it apt and be fitting to switch over to summons trial from summary trial. Hence for the evidence of the complainant. Issue notice to the complainant, 23-12- 2022 Accused represented. Complainant not represented. Issue notice to the 21-01- 2023. Complainant not represented. Accused represented. For evidence of the complainant. No further time. 27-01-2023. CRL.A. NO. 1167 OF 2023 6 27-01-2023 Complainant not represented. Accused represented. Despite chances given, the complainant did not adducere, hence find it a fit a case to invoke Sec.256 Cr.PC and hence the accused is acquitted hereunder. The proceedings would reveal that, after

23.12.2022, the case was adjourned to 21.01.2023 without notice to the complainant. The resultant conclusion is that the judgment acquitting the accused is liable to be set aside. The judgment dated 27.01.2023 passed in C.C.No.1478/2016 on the file of Judicial First Class Magistrate Court (N.I Act Cases), Ernakulam is set aside and the complaint is restored to the file. The parties are directed to appear before the Trial Court on 15.02.2024. SM Sd/- K.BABU, JUDGE