Kerala High Court
P.N.Raman vs K.Abdul Rahiman on 14 June, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939
Crl.Rev.Pet.No. 492 of 2017 ()
-------------------------------
CMP 6207/2015 of JUDICIAL FIRST CLASS MAGISTRATE
COURT-1,SULTHANBATHERY
----------
REVISION PETITIONER/COMPLAINANT :
-------------------------------
P.N.RAMAN, AGED 64 YEARS,
S/O.LATE NARAYANAN, POOKATTIL HOUSE,
MANJAPPARA, AMBALAVAYAL VILLAGE, BATHERY
BY ADV. SRI.M.R.SASITH
RESPONDENTS/ACCUSED & STATE :
---------------------------
1. K.ABDUL RAHIMAN, S/O. MOIDEENKUTTY,
AGED 43 YEARS, KADALMAD, THOMATTUCHAL AMSOM,
BATHERY - 675001
2. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031
R1 BY ADVS. SRI.MANUEL KACHIRAMATTAM
SMT.MERRY GEORGE
R2 BY PUBLIC PROSECUTOR SRI.JUSTIN MATHEW
THIS CRIMINAL REVISION PETITION HAVING BEEN
FINALLY HEARD ON 14-06-2017, ALONG WITH CRRP.
NO.493/2017, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
bp
"C.R"
ALEXANDER THOMAS, J.
-----------------------------
Crl.R.P.Nos.492 & 493 Of 2017
---------------------------------
Dated this the 14th day of June, 2017.
O R D E R
The petitioners challenge the orders passed by the trial court in dismissing the application for condonation of delay in filing the complaints and the consequent orders passed by the trial court dismissing the complaints. The matters arise out of complaints filed by the petitioners against the 1st respondent alleging offence punishable under Sec.138 of the Negotiable Instruments Act. The 1st respondent- accused is the same person in both these matters and the complainants are different persons. The facts in both these matters are almost identical in so far as the issue posed for determination before this Court.
2. The dishonoured cheques in these cases were drawn on State Bank of Travancore, Kolagappara Branch, and the cheques were sent for collection through the bank, wherein the complainants have maintained account, which is also the same bank. Initially, the petitioners had filed the respective complaints before the Judicial First Class Magistrate Court, Kalpetta, on 23.8.2014. Later, by virtue of the ::2::
Crl.R.P.Nos.492 & 493 Of 2017 directives of the Apex Court contained in the judgment dated 1.8.2014 in Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, the above said Magistrate had returned back the complaints to the petitioners on 23.8.2014 for re-presentation before the proper court. According to the petitioners, their counsel has taken back the complaint but the same was misplaced in the chambers and it could be retrieved later and the complaints were re-filed before the proper court (viz, Judicial First Class Magistrate Court, Sultan Bathery) on 10.12.2015 along with Criminal Miscellaneous Applications to condone the delay of 443 days in re-filing those complaints. The learned Magistrate as per the impugned orders passed in both these cases had rejected the said plea for condoning the delay and the reasonings thereof are given in para 5 of the order, which read as follows:
"5. After perusing the petition, it is seen that the reason for the delay was stated as the misplacement of file from Advocate's Office. In my opinion, the reason for not re-filing the complaint even after elapse of 443 days is not sufficiently explained by the petitioner and the reason stated appears to be a name sake one. Hence the inordinate delay of 443 days could not be condoned by this court."
It is common ground that consequent to the impugned order dismissing the delay condonation applications, the complaints have also been dismissed. It is these proceedings that are under challenge before this Court.
::3::
Crl.R.P.Nos.492 & 493 Of 2017
3. Heard Sri.M.R.Sarin Panicker, learned counsel appearing for the revision petitioners (complainants), Sri.Manuel Kanchiramattom, learned counsel appearing for R-1 (accused) and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State.
4. After hearing the learned Advocates on both sides, this Court is of the view that the trial court has omitted to take into consideration some crucial and relevant aspects of the matter that flow out of the dictum laid down by the Division Bench of this Court in Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB). After the pronouncement of the judgment dated 1.8.2014 in Dasarath's case (supra) reported in (2014) 9 SCC 129, substantial amendments were made to the provisions contained in the N.I. Act as per the provisions of the N.I.Act (Amendment Ordinance, 2015) and the subsequent amendment Ordinance Act, which replaced those orinances. Those amendments have come into force on 15.6.2015 and the amendments have been made so as to incorporate sub-sec.(2) of Sec.142 as well as the provisions contained in Sec.142 A. Though in Dasarath's case (supra) the Apex Court has held that the complaint has to be re-presented within 30 days time limit, the Division Bench of this Court in Binoy K.Mathew's case (supra) has held that nothing in the said ::4::
Crl.R.P.Nos.492 & 493 Of 2017 judgment of the Apex Court will preclude the learned Magistrate from exercising the statutory powers conferred as per Sec.470 of the Cr.P.C r/w Sec.142(1)(b) of the N.I. Act for considering the question of condonation of delay beyond the said 30 days time limit in respect of the complaints which were re-presented beyond the said 30 days time limit so long as such complaints were re-presented on or before coming into force of the amended provisions of the N.I Act on 15.6.2015. But the Division Bench in Binoy K.Mathew's case (supra) has also held that in view of the subsequent amendment brought about to Sec.142A of the Act, resort to the provisions contained in Sec.470 Cr.P.C r/w proviso to clause (b) of Sec.142(1) may not be really necessary in such cases in view of the provisions contained in Sec.142A which contained the non obstante clause thereto which covers the pending cases before any court whether filed before it or transferred to it before the commencement of the ordinance and that such cases shall be transferred to the court having jurisdiction under Sec.142(2) of the N.I.Act as if that sub-section had been in force at all material times. Further that the amended provisions are clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for dishonour of cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill.
::5::
Crl.R.P.Nos.492 & 493 Of 2017 Accordingly, their Lordships of the Division Bench of this Court in Binoy K.Mathew's case (supra) have held in para 20 thereof that in view of the subsequent events relating to legislative amendments which took place after the judgment of the Apex Court in Dashrath Rupsingh Rathod's case (supra), such complainants who have re-presented the complaints after 30 dyas time limit but before coming into force of the amended provisions could be permitted to present their complaints in the respective courts where they were originally filed and on such presentation, the courts shall treat the same having been filed on the date on which the respective complaints were originally filed. It would also be profitable to quote paras 19 and 20 of the above said Divison Bench Judgment in Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB) which read as follows:
"19. It is submitted by the learned counsel appearing for the petitioners that the complaints involved in these Crl. R.P.s were filed in courts which had jurisdiction, going by sub-section (2) of S.142 of the N.I. Act inserted by the Ordinance No.6 of 2015. The Ordinance is in force. The ordinance promulgated under Article 123 of the Constitution of India shall have the same force and effect as an act of Parliament. The Ordinance has not ceased to operate as provided in sub clause (a) of Clause (2) of Article 123 of the Constitution of India, nor was it withdrawn as provided in sub clause (b) therein. If so, the complaints would have been maintainable before the courts where they were filed, going by the submission made by the counsel. The non obstante clause in S.142A of the N.I. Act, as inserted by the Ordinance, covers cases pending before any court, whether filed before it or transferred to it, before the commencement of the Ordinance and such cases shall be transferred to the court having jurisdiction under sub-section (2) of S.142 of the N.I. Act as if that sub-section had been in force at all material times. Ordinance No.6 of 2015 is clarificatory in nature, clarifying the territorial jurisdiction for trying the cases for dishonour of ::6::
Crl.R.P.Nos.492 & 493 Of 2017 cheques as indicated in the Statement of Objects and Reasons appended to the Amendment Bill. Sub-section (1) of S.142A of the N.I. Act would make the position clear that it is clarificatory in nature. If so, it is not necessary to direct the courts which passed the impugned orders to entertain the complaints and consider the applications for condonation of delay. It would be sufficient if the petitioners are permitted to present the complaints before the courts where they were originally filed.
20. On the presentation of the complaints before the courts where they were originally filed, naturally it would be beyond the period of limitation if the date of such presentation is taken as the material date. S.470 of Cr.P.C. gives ample powers to the Court to exclude the time during which the complainant was prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision. Going by the wording of S.470, a fresh complaint is required. But the principles underlying S.470 of the Cr.P.C. will apply in the peculiar facts and circumstances of the case, even if the same complaint is re-presented. In view of the events which took place after the judgment of the Supreme Court in Dashrath Rupsingh Rathod's case (supra) and the position as clarified in the N.I. Amendment Ordinance 2015 (No.6 of 2015), as well as the direction given by the Supreme Court in paragraph 22 of the Dashrath Rupsingh Rathod's case (supra), we are of the view that the petitioners can be permitted to present the complaints in the respective courts where they were originally filed. On such presentation, the Courts shall treat the same having been filed on the date on which the respective complaint was originally filed.
The petitioners shall present their respective complaint in the proper Court namely, the Court where it was originally filed, within one month from today." Therefore, so long as such complaints, which were not filed within 30 days time limit, are re-presented before the proper court, at least immediately prior to 15.6.2015, then the Division Bench ordered that such cases do not require invocation of delay condonation or time exclusion and that those complaints should be permitted to be filed before the courts concerned.
5. However, the cases like the present one which were returned pursuant to the directives of the Apex Court in Dashrath Rupsingh Rathod's case (supra), but were not re-presented within 30 ::7::
Crl.R.P.Nos.492 & 493 Of 2017 days time limit, but which were re-presented after the coming into force of the amended provisions which were made effective from 15.6.2015, stand on a different footing inasmuch as such complaints could not directly secure the benefits of the directives issued by the Division Bench in Binoy K.Mathew's case (supra) as the Division Bench directives cover only the cases where such delayed complaints were re-
filed at least prior to 15.6.2015, etc. The cases of complaints which were so re-presented after 15.6.2015, have been considered in detail by this Court in the judgment dated 16.1.2017 in Crl.M.C.No.2079/2016, wherein it has been held that in such cases the provisions contained in Sec.470 of the Cr.P.C r/w proviso (b) to Sec.142(1) could be resorted to and the applicants have the right to get the delay condonation application to be considered on merits by the trial court concerned after hearing the complainant as well as the accused.
6. The present cases are those which are covered by the legal position laid down by this Court in Crl.M.C.No.2079/2016 dated 16.1.2017. Therefore, the petitioners have rightly approached the competent trial court for condoning the delay in re-presenting their complaints which were re-filed much after 15.6.2015. The learned Magistrate has dismissed the delay condonation application in view of ::8::
Crl.R.P.Nos.492 & 493 Of 2017 the grounds stated in para 5 of the impugned order, which has been quoted hereinabove. But one crucial and relevant aspect of the matter which flows from the legal principles laid down by the Division Bench in Binoy K.Mathew's case (supra) as well as the subsequent order of this Court in Crl.M.C.No.2079/2016 appears to have escaped the considered attention of the trial court. Presumably, this could have occurred as the complainant would not have brought those aspects to the notice of the learned Magistrate. The said aspect of the mater is that going by the fine tuned legal principles laid down by the Division Bench in Binoy K.Mathew's case (supra) in respect of all complaints which were not re- filed immediately after 30 days' time limit but were re-filed later but prior to the coming into force of the ordinance with effect from 15.6.2015 their Lordships in the aforecited judgment held that in view of the subsequent amendment brought about to Sec.142A of the Act, resort to the provisions contained in Sec.470 Cr.P.C r/w proviso to clause (b) of Sec.142(1) may not be really necessary in such cases in view of the provisions contained in Sec.142A and such complainants should be permitted to re-present their complaints before the competent criminal court, etc. In other words, so long as such complaints which were not filed within the 30 days time limit but which were re-filed or ::9::
Crl.R.P.Nos.492 & 493 Of 2017 re-presented prior to 15.6.2015 would come within the ambit of the beneficial directions contained in Binoy K.Mathew's case (supra). In other words, time up to 14.6.2015 may not be a hindrance in the delay condonation process and it would be excluded in such cases, by importing the principles discernible from the provisions in Sec.470 of the Cr.P.C., which deals with time exclusion. Therefore, even in the case of complaints as in the instant cases, where the complaints which were returned pursuant to the Apex Court's directives were not filed prior to 15.6.2015, it would certainly require delay condonation process but the time upto 14.6.2015 would not really stand in their way relating to the claim for delay condonation. So, in substance, the trial court has to assess the issue of condonation of delay from 15.6.2015 upto the date of re-presentation, which in these cases happened to be on 10.12.2015.
Whereas the learned Magistrate appears to have taken into account the entire period commencing from 28.3.2014 (30 days after the date of return of the complaint) upto the date of re-filing on 10.12.2015. Therefore, the trial court had omitted to take into consideration the crucial and relevant aspect of the matter and the matter would require re-consideration at the hands of the trial court. In this view of the matter, the impugned orders passed in these cases will stand set aside.
::10::
Crl.R.P.Nos.492 & 493 Of 2017 Resultantly, the orders passed by the Magistrate dismissing the complaints will also stand set aside. The respective delay condonation applications and the complaints in both these cases will stand restored to the trial court and the matters are remitted to the trial court to consider the entire matter afresh. In this process, the trial court need to assess only the reasons for the delay from 15.6.2015 (coming into force of the amended ordinance) up to 10.12.2015 (date of re-presentation of the complaints). The petitioners are given further opportunity to file additional affidavits in both these matters for delay condonation application urging various grounds in that regard. The trial court will afford a reasonable opportunity of being heard to the complainant and the accused and then would pass necessary orders on those applications in the light of the legal principles laid down by this Court in Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB) as well as the order dated 16.1.2017 passed in Crl.M.C.No.2079/2016 as well as in the light of the observations made in these cases. The petitioners will furnish photocopies of those judgments before the learned Magistrate for his perusal. A decision in this regard should be taken at least within a period of 6 weeks from the date of receipt of a certified copy of this order.
::11::
Crl.R.P.Nos.492 & 493 Of 2017
6. The learned counsel appearing for the 1st respondent would submit that in case the learned Magistrate is inclined to consider the plea for delay condonation, then this Court may direct that cost may be awarded to the accused. It is made clear that the accused will be at liberty to raise such a contention before the learned Magistrate and after consideration of the facts and circumstances of these matters, it will be open to the learned Magistrate to reckon whether cost should be imposed on the complainants if the plea for delay condonation is to be allowed.
With these observations and directions, these Crl.R.Ps will stand disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
Bkn/-
// true copy // P.A to Judge.