Kerala High Court
Revision vs By Advs on 23 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941
Crl.Rev.Pet.No.2885 OF 2003
AGAINST THE JUDGMENT IN CC 194/1998 DATED 31-07-2003 OF CHIEF
JUDICIAL MAGISTRATE ,THODUPUZHA
REVISION PETITIONER/DEFACTO COMPLAINANT/PW1-BEFORE THE COURT
BELOW:
GEORGE JOSEPH,S/O JOSEPH,
PARATHALACKAL HOUSE,
MUTHALAKODAM P.O, THODUPUZHA
BY ADVS.
SRI.K.A.BABY
SRI.JOHN VIPIN
RESPONDENTS/STATE OF KERALA & ACCUSED:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
2 JOSE
S/O JOSEPH, KALATHOOR HOUSE,NEAR KAVA,
MEENACHIL KARA,MEENACHIL VILLAGE
R1 BY ADV. SRI.MATHEW JOHN K
R1 BY ADV. SRI.MATHEW DEVASSI
PUBLIC PROSECUTOR - MS. M N MAYA
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
23.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.Rev.Pet.No.2885 OF 2003 2
ORDER
Revision Petitioner is the de facto complainant in C.C. No.194/1998 on the file of the Chief Judicial Magistrate Court, Thodupuzha, for the offence punishable under Section 420 of the Indian Penal Code (hereinafter referred to as 'the IPC').
2. By judgment dated 31.07.2003, the learned Chief Judicial Magistrate, Thodupuzha found the accused not guilty for the offence punishable under Section 420 IPC and acquitted under section 248(1) of Cr.P.C. Feeling aggrieved, the complainant/revision petitioner preferred this revision.
3. Originally, the revision petitioner filed the complaint before the court below alleging commission of the offences punishable under Sections 420 and 465 IPC against the accused. The complaint was forwarded for investigation under Section 156(3) Cr.P.C to the Station House Officer, Thodupuzha. After completing the investigation, final report was laid before the court below for the offence punishable under Section 420 IPC.
Crl.Rev.Pet.No.2885 OF 2003 3
4. Prosecution case in brief is that, pursuant to an agreement dated 25.01.1997, the accused purchased the shares of the de facto complainant in a running partnership business. The accused issued three cheques to the complainant, amounting to Rs.10,00,000/- (Rupees ten lakhs only). The first among the three cheques for an amount of Rs.3,00,000/-, on presentation, dishonoured, for the reason 'drawer's signature incomplete' and also on the ground of 'funds insufficient'. It is alleged that the cheques were issued dishonestly intending to deprive of the de facto complainant's share in the partnership business which is quantified as Rs.10 lakhs. Consequent to the dishonour of the cheque, a notice was issued to the accused calling upon him to pay the amount to which he sent a reply, raising a plea that the cheque was issued by way of security.
5. During the trial, PW1 to PW5 were examined and marked Exts.P1 to P9 on the side of the prosecution. Ext.P9 is the report submitted by the investigating officer deleting Section 465 IPC. On closing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. To substantiate the plea advanced by the accused, DW1 was Crl.Rev.Pet.No.2885 OF 2003 4 examined and Exts.D1 to D4 were marked, on his side.
6. On an appreciation of the entire evidence in detail, the court below entered a finding that the dishonour of a cheque cannot be treated as an act amounting to cheating and the offence under Section 420 IPC is not prima facie brought out. Accordingly, the accused was acquitted for the offence punishable under section 420 IPC.
7. It is disclosed from the facts of this case that the complainant filed a complaint before the learned Magistrate by way of Ext.P1 complaint alleging offences punishable under Sections 420 and 465 IPC. Instead of taking cognizance for the offence alleged against the accused, the learned Magistrate had chosen to send the complaint for investigation and report, as provided under Section 156(3) Cr.P.C. Consequently, the police registered the case as crime No.67/1998 of Thodupuzha police station for the offences punishable under Sections 420 and 465 IPC. During investigation, it was disclosed that the offence under Section 465 was not made out. Hence, the investigating officer filed a report deleting the offence punishable under Section 465 IPC from the FIR. After investigation, the investigating Crl.Rev.Pet.No.2885 OF 2003 5 officer filed final report under Section 420 IPC.
8. Upon perusal of the final report, the court below took cognizance under section 420 IPC and issued summons to the accused. On appearance of the accused, after having heard sides, charge under Section 420 was framed to which the accused pleaded not guilty. After a full-fledged trial, both parties were heard. The court found that no offence under Section 420 was made out and the accused was acquitted accordingly. .
9. When this revision has come up for hearing, learned counsel for the revision petitioner has relied on a decision reported in Muralidharan V. V.A.Kumaran and Another [2016 (3) KLT 315] and contended that this is a case wherein all the ingredients constituting an offence punishable under Section 138 of the Negotiable Instruments Act was made out and as such the trial court ought to have applied its mind and take cognizance of the offence under Section 138 of the Negotiable Instruments Act. The sum and substance of the contention is that misquoting of a provision or an offence is not at all fatal to the complainant. In other words, it is contended that the complainant cannot Crl.Rev.Pet.No.2885 OF 2003 6 be militated for the mistake in quoting the section before the trial court.
10. On the other hand, refuting the contention of the learned counsel for the revision petitioner, the learned counsel for the 1st respondent submitted that this is a case where the complainant alleged the offences punishable under Section 420 and 465 IPC against the accused in black and white before the court below and no sufficient reasons are brought out to take a different view, in a revision against acquittal in the light of the finding by the court below that the offence under section 420 IPC is not proved beyond reasonable doubt. It is further contended that an offence under Section 138 of the Negotiable Instruments Act is not made out on merits.
11. It is true that Ext.P1 complaint was filed by the complainant before the court below alleging offences punishable under Sections 420 and 465 IPC. Rightly or wrongly, the complaint was forwarded for investigation under Section 156(3) Cr.P.C. The police investigated the case and filed a report under Section 420 IPC. Merely because a final report was filed before the court, the court below was not Crl.Rev.Pet.No.2885 OF 2003 7 obliged to take cognizance under Section 420 IPC at the time of taking cognizance. The court below was bound to apply its mind independently. When the final report was submitted, Ext.P1 complaint with Annexrues therein were very much available along with the final report. Ext.P1 complaint is supported by five annexures. Annexure-1 is the copy of the cheque dated 30.06.1997. Annexure-2 is the copy of the cheque dted 31.12.1997, Annexure-3 is the dishonour memo dated 13.12.1997, Annexure-4 is the advocate's notice dated 23.12.1997 issued by the de facto complainant and Ext.A5 is the reply notice issued by the accused respectively.
12. On going through Annexure-4 Advocate's notice issued by the complainant, the following facts are revealed. The accused issued cheque dated 30.06.1997 for Rs.3,00,000/-(Rupees three lakhs only) drawn on his account maintained with the South Indian Bank Ltd, Cherpunkal to the complainant, after having received valid consideration. The cheque, on presentation, was dishonoured for the reasons, 'insufficient funds' and 'drawer's signature incomplete'. The cheque was received Crl.Rev.Pet.No.2885 OF 2003 8 by the complainant on 18.12.1997. Consequently, Annexure-4 notice, i.e, Ext.P4 was issued to the accused calling upon him to pay an amount of Rs.3 lakhs within 15 days from the date of receipt of the notice, failing which the accused will be prosecuted for an offence under section 138 of the Negotiable Instruments Act.
13. To the demand notice issued, the accused issued a reply on 03.01.1998 contending that the cheque was issued by way of security. The complaint was presented before the court below on 29.01.1998. On going through the demand notice issued by the complainant, it is crystal clear that an offence punishable under Section 138 of the Negotiable Instruments Act is alleged against the accused. Merely because a wrong provision of the law is quoted by a party or an advocate in the complaint, it is not a ground to disallow the claim of the aggrieved on technical reasons.
14. In view of the above, this court is of the view that the facts and circumstances alleged in this case are similar to the facts decided in Muralidharan's case (supra). Hence it is just and proper to direct the trial court to have recourse to the provisions under Sections 190(1)(a) and Crl.Rev.Pet.No.2885 OF 2003 9 section 200 Cr.P.C and to proceed with the complaint in accordance with law and take cognizance of the offence under Section 138 of the Negotiable Instruments Act on the original complaint dated 29.01.1998, in case the offence under Section 138 of the Negotiable Instruments Act is made out.
In the result, the impugned judgment of the trial court in C.C. No.194/1998 is set aside. The private complaint dated 29.01.1998 filed by the complainant is restored. The learned Magistrate is directed to proceed with the complaint as if it is a complaint instituted under Section 138 of the Negotiable Instruments Act in accordance with law. It is clarified that the court below is free to take its own decision untrammeled by the observations contained in this order.
The Crl.R.P stands allowed as stated above. The parties are directed to appear before the court below on 10.02.2020.
Sd/-
N.ANIL KUMAR JUDGE ajt