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2024 Supreme(Online)(KER) 56146
HIGH COURT OF KERALA
C.S. Sudha, J
PETSY POULOSE – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A NO. 1541 OF 2023 | C.C.NO.4503/2015
For the Appellants/Petitioners: S. GOPAKUMAR, T. BINITHA
For the Respondents: SRI. VIPIN NARAYAN
The court emphasizes the right to a fair trial, allowing the complainant due process to present her case despite prior absence.
Headnote:The appeal concerns a dismissal of a complaint in a criminal trial under Section 256(1) Cr.P.C. due to the complainant's absence. The trial court acquitted the accused citing the complainant's unavailability to present evidence. The court found that the complainant was misinformed about the hearing schedule. The court noted the need for the complainant to receive a fair opportunity to present her case. The court allowed the appeal and set aside the prior order, directing the trial court to take necessary steps to process the complaint. The decision emphasizes fair trial principles.
| Table of Content |
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| 1. right to fair trial and opportunity to present evidence. (Para 1) |
| 2. court's determination to allow the complainant a chance to present her case. (Para 2 , 3) |
JUDGMENT
This is an appeal filed by the complainant in C.C.No.4503/2015 on the Court of the Judicial Magistrate of First Class (N.I.Act cases), Ernakulam. The trial court as per order dated 14/02/2023 acquitted the accused under Section 256 (1) Cr.P.C. on the ground that the complainant though given sufficient opportunity did not appear before the court to adduce evidence. The learned counsel for the appellant takes me through the B diary in the aforesaid case, which reads-
“23-12-2022 Case adjourned to 20-02-2023.
28-12-2022 Advanced. Accused present. Copy served and Bail is granted to the accused. Plea read over to which accused pleaded not guilty and claimed trail. Considering the nature of transaction and the hefty sum of money involved in the case, this court finds it apt and befitting to switch over to summons trail from summary trail. Hence for the evidence of the complainant. Issue notice to the complainant. 25-01- 2023.
25-01-2023 Complainant not represented. Accused not represented. Call on 07-02-2023.
07-02-2023 Complainant present and issue notice to the defence counsel. 10-02-2023.
10-02-2023 No sitting case adjourned to 14-02-2023.
14-02-2023 Complainant not represented. Accused represented. Despite chances given, the complainant has not turned up to adduce evidence. Hence I don't find any reason to grant another adjournment to the complainant to adduce evidence. Hence I find it a fit case to invoke Sec.256 Cr.P.C. and therefore the accused is acquitted hereunder."
The learned counsel for the appellant points out that he was only aware that the case had been adjourned to 20/02/2023. Though the trial court had ordered notice to be issued to him on 28/12/2022, he had not received any notice and he was also not aware of the posting date on 07/02/2023. It is a mistake that has been noted by the court that the complainant was present on 07/02/2023. It is submitted that it was only after 20/02/2023, the original date of posting, the complainant came to know that her complaint had been dismissed and the accused acquitted.
2. Though notice has been served on the 2nd respondent/accused, he has not appeared before this Court either in person or through counsel. Heard the learned counsel for the complainant.
3. On going through the records, I find that interest of justice requires the complainant to be given an opportunity to get an order on merits. Hence, in these circumstances, the appeal is allowed and the impugned order is set aside. The complainant shall appear before the trial court on 31/01/2024. The trial court shall take the complaint back on file and proceed with the same as per law after giving notice to the accused in the case.
Interlocutory applications, if any pending, shall stand closed.
