Abdul Gafoor v. SANAFOR S.S. and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 ``` ``` CRL.A NO. 372 OF 2020 ``` ``` AGAINST THE JUDGMENT IN ST 234/2018 OF JUDICIAL FIRST CLASS MAGISTRATE ,KUNNAMANGALAM ``` ## **`APPELLANT/COMPLAINANT:`** ``` ABDUL GAFOOR AGED 44 YEARS S/O. MOHAMMED, MANAGING PARTNER, PETROCORE OILS AND LUBRICANTS LLP, 28/1279-B, NELLIKODE INDUSTRIAL ESTATE, CHEVAYOOR, KOZHIKODE. ``` ``` BY ADVS. T.R.HARIKUMAR SRI.ADITHYA RAJEEV ``` ## **`RESPONDENTS/ACCUSED & STATE:`** ``` 1SANAFOR S.S. MANAGING DIRECTOR, M/S. DEXON LUBRICANTS AND AUTO PARTS PVT. LTD., OPP. PRABHATH LIBRARY, AZHIKODE, CHENKONAM, NEDUMANGAD, THIRUVANANTHAPURAM, PIN-695 541. 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682 031. ``` ``` SRI.N.R.SANGEETH RAJ-PUBLIC PROSECUTOR- R2 ``` ## **`THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` CRL.A NO.372 OF 2020 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 6[th] day of October, 2023 The appellant, who is the complainant in S.T.No.234/2018 on the files of the Judicial First Class Magistrate Court, Kunnamangalam, is aggrieved by order dated 06.01.2020, by which the learned Judicial First Class Magistrate has found the accused not guilty and acquitted the accused under Section 255(1) of Cr.P.C., of the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The appellant stated before the court below that the appellant and the accused are known to each other. The accused borrowed `5,00,000/- from the complainant. To discharge the said debt, a cheque dated 24.01.2018 payable at the Central Bank of India, Peroorkad Branch was issued. The cheque, when presented for realiseation, was ``` CRL.A NO.372 OF 2020 ``` ``` 3 ``` dishonoured for the reason “Funds Insufficient”. 3. The appellant sent lawyer’s notice as contemplated under the Negotiable Instruments Act. The notice was not positively responded to. The appellant therefore filed S.T.No.234/2018. 4. Summons was issued to the accused with a copy of the complaint. On receipt of summons, the accused appeared before the Court. The accused pleaded not guilty. The appellant filed affidavit in lieu of examination on 02.09.2019. Exts.P2 to P5 documents were marked. On 06.01.2020, the accused was absent. The counsel was ready for cross examination of PW1. But, neither the appellant nor his counsel was present before the Court. As the appellant was not ready to appear before Court to subject himself for cross examination, the learned Magistrate held that the evidence of PW1 has no probative value and the same was eschewed by the Court. The Court thereupon held that it is satisfied that the ``` CRL.A NO.372 OF 2020 ``` ``` 4 ``` appellant has failed to prove the case charged and alleged against the accused beyond reasonable doubt and therefore the accused is entitled for an acquittal. It was consequently that the accused was acquitted under Section 255(1) of the Cr.P.C. 5. Though notice was issued to the accused, neither the accused nor the counsel for the accused was represented in the Court. Counsel for the appellant argued that the Court must be vigilant while denying valuable right of a person to prosecute the case, as the absence of the complainant or his counsel may be due to genuine reason. Having been properly represented by his counsel on all the previous postings, the court below ought not have opposed the evidence of the appellant and acquitted the accused. 6. Counsel for the appellant further submitted that the appellant having been duly represented by a counsel on all the previous posting dates and having duly filed the affidavit in lieu ``` CRL.A NO.372 OF 2020 ``` ``` 5 ``` of chief examination on the previous posting date, the court below arrived at an erroneous conclusion that the appellant was not ready to subject himself for cross examination. 7. I have heard the learned counsel for the appellant and the learned Public Prosecutor representing the 2[nd] respondent. 8. It is evident from the pleadings that on 02.09.2019, the appellant had filed an affidavit in lieu of examination in chief. The counsel for the accused sought time for cross examination and it was for that reason, the case was adjourned to 06.01.2020. On 06.01.2020, the appellant would contend that the junior lawyer attached to the office of the counsel for the appellant requested the matter to be taken up after a while for cross examination of the appellant. The trial court did not accept such request and observed that neither the appellant nor the counsel appearing for the appellant was present. ``` CRL.A NO.372 OF 2020 ``` ``` 6 ``` 9. Be that as it may, it is evident from the order that the appellant was present in the previous occasion. The appellant had filed his chief affidavit promptly on 02.09.2019, which was accepted. The appellant was treated as PW1. Nonrepresentation of the appellant and his counsel was only for one day on 06.01.2020. 10. This Court in the judgment in **Cauvery Build Tech (P) Ltd. v. Aneesh James and another** [2019 (3) KLJ 928] has held that in the absence of the counsel and the complainant, the Court should ordinarily provide a second opportunity to appear, explain and contest the matter. Court has to apply its mind to the previous proceedings to see whether the complainant is a person vigilant in prosecuting his case or character of the complaint is contumacious. 11. In the case of the appellant, the appellant approached the Court when an offence was committed under Section 138 of the Negotiable Instruments Act. All relevant ``` CRL.A NO.372 OF 2020 ``` ``` 7 ``` documents were produced before the Court by the appellant. The appellant also promptly filed chief affidavit without delay. It was for the absence of a single day that the complaint has been dismissed by the court below. It is further to be noted that the Court has acquitted the accused invoking Section 255(1) of the Cr.P.C. 12. Section 255(1) of the Cr.P.C. provides that if the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal. In the complaint filed by the appellant, the Magistrate did not complete the evidence. 13. As per Section 256 of the Cr.P.C, 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 ``` CRL.A NO.372 OF 2020 ``` ``` 8 ``` 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. Going by the nature of events in the case, the Magistrate was not justified in acquitting the accused invoking Section 255(1) of Cr.P.C. 14. For all the above reasons, I find that the judgment dated 06.01.2020 in S.T.No.234 of 2018 of the Judicial First Class Magistrate Court, Kunnamkulam, is unsustainable in law. The judgment is therefore set aside. The matter is remitted back to the Judicial First Class Magistrate Court, Kunnamkulam. Criminal Appeal is allowed as above. Sd/- **N.NAGARESH JUDGE** hmh