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2025 Supreme(Online)(Ker) 56433
IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J
M/S.RELIANT CREDITS (INDIA) LTD – Appellant
Versus
JAYASREE MANI – Respondent
CRL.A NO. 1569 OF 2025 | CRL.L.P. NO.116 OF 2025 | ST NO.849 OF 2020
For the Appellants/Petitioners: SHRI.BALRAM S.A.
For the Respondents: SRI. NOUSHAD K.A.
The court emphasizes adherence to procedural requirements for acquittal under the new act, which mandates a 30-day notice period for non-appearance before discharging an accused.
Headnote:This judgment concerns an appeal against an order of acquittal under Section 256 Cr.P.C. for a complaint initiated under Section 138 Negotiable Instruments Act due to cheque dishonour. The Court finds that despite multiple opportunities, the complainant failed to appear, justifying the acquittal. The Court holds that the Magistrate overlooked the new procedural requirements under the Bharatiya Nagarik Suraksha Sanhita, which necessitate a 30-day appearance period before discharging the accused. Consequently, the appeal is allowed, the impugned judgment is set aside, and the matter is remanded for fresh consideration with costs imposed on the appellant.
| Table of Content |
|---|
| 1. overview of the case and acquittal basis. (Para 1 , 2 , 4 , 5 , 6) |
| 2. court's engagement with counsel. (Para 3) |
| 3. observation regarding trial procedural requirements. (Para 7) |
| 4. outcome of the appeal and future directives. (Para 8) |
JUDGMENT
This is an appeal against an order of acquittal of the accused in S.T.No.849/2020 on the files of the Judicial First Class Magistrate Court-II, Kothamangalam.
2. By the impugned judgment dated 30.11.2024, the learned Magistrate has dismissed the complaint under Section 256 Cr.P.C. (sic).
3. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor. Though notice to the respondent was served, none appears on his behalf.
4. The appellant was the complainant who had initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881, due to the dishonour of a cheque issued by the accused. The case was posted on several dates for enabling the complainant to adduce his evidence. The impugned order narrates the series of postings that were granted at the behest of the complainant. However, when the case was taken up for evidence on 30.11.2024, the complainant was again absent.
5. The impugned judgment reveals that there were adjournments granted to enable the complainant to adduce his evidence on 18.08.2023, 02.11.2023, 08.01.2024, 06.04.2024, 23.04.2024, 11.07.2024 and again on 05.10.2024. On all these postings, the complainant was not present. In such circumstances, the Magistrate was left with no other alternative but to acquit the accused. In the impugned judgment, it is mentioned that the complaint is dismissed under Section 256 Cr.P.C., which obviously is a mistake for acquitting the accused.
6. After the coming into force of Bharatiya Nagarik Suraksha Sanhita , with effect from 01.07.2023, the procedure to be followed in the matter of acquittal is that the Magistrate must provide a period of up to 30 days for the parties to appear before discharging the accused. Instead of applying the provisions of the new statute, the learned Magistrate proceeded to acquit the accused under Section 256 Cr.P.C. As per the new Act, before acquitting the accused for his failure to appear, an opportunity of 30 days ought to be granted.
7. In the instant case, the learned Magistrate was justified in acquitting the accused since the 30 days period had even been granted as is evident from the number of adjournments given to the complainant to adduce his evidence. However, since the said principle as laid down in Section 279 BNSS was not considered, I am of the view that the impugned judgment is liable to be set aside and the matter be remanded for fresh consideration to enable the complainant as well as the accused to adduce their evidence.
8. Considering the fact that the complainant has been continuously absent despite direction from the learned Magistrate, I deem it appropriate to allow this appeal on terms.
In the result, this appeal is allowed subject to the condition that the appellant pays a cost of Rs.3,000/- [Rupees three thousand only] to the Kerala State Legal Services Authority within two weeks from today. The impugned judgment dated 30.11.2024 in S.T.No.849/2020 on the files of the Judicial First Class Magistrate Court-II, Kothamangalam; is hereby set aside and the matter is remanded for fresh consideration. The appellant shall appear before the trial court without fail on 18.12.2025 and the learned Magistrate shall thereafter issue fresh summons to the accused, as he has not appeared before this Court.
