Kerala High Court
Nazeer Punnakkal vs Vijayan on 3 March, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936
OP(Crl.).No. 171 of 2014 (Q)
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IN CC 244/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT, DEVICULAM
PETITIONER:
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NAZEER PUNNAKKAL, AGED 49 YEARS
S/O.ABDUL AZEEZ, PUNNAKKAL PARAMBIL, VELLAKINAR WARD
ALAPPUZHA.
BY ADV. SRI.P.SHANES METHAR
RESPONDENT:
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1. VIJAYAN,
S/O.PADMANABHAN, ANITHA BHAVAN, MARAYOOR-685620.
2. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SRI P. MAYA, PUBLIC PROSECUTOR
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 20-08-2014, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JV
OP(Crl.).No. 171 of 2014 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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P1: COPY OF THE COMPLAINT IN C.C.NO.244/2001 ON THE FILE OF JUDICIAL
FIRST CLASS MAGISTRATE COURT, DEVIKULAM.
P2: COPY OF THE REPORT NO.BS-87/10 DATED 3.3.2012.
P3: COPY OF DEPOSITION OF PW2 (BANK MANAGER) IN CC 244/2001.
P4: COPY OF THE PETITION DATED 15.12.2009 FILED BY THE COMPLAINANT TO
RE-OPEN EVIDENCE.
RESPONDENT(S)' EXHIBITS : N I L
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//TRUE COPY//
P.A. TO JUDGE
JV
K. RAMAKRISHNAN, J.,
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O.P.(Crl) No. 171 OF 2014
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Dated this the 20th day of August, 2014
JUDGMENT
This is an application filed by the petitioner, who is the accused in C.C. No. 244/2001 of Judicial First Class Magistrate Court, Devikulam, for speedy disposal of the case under Article 226 of the Constitution of India.
2. It is alleged in the petition that petitioner has been arrayed as the accused in C.C. No. 244/2001 on the file of the Judicial First Class Magistrate Court, Devikulam which was taken on file on the basis of a private complaint filed by the first respondent alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act. According to the complainant, the petitioner and his team resided in a hotel by name 'Chandana Residency Tourist Hotel' at Marayoor, of which, the complainant is the proprietor. There was an amount of Rs. 80,000/- was payable on that account and in discharge of that liability, the petitioner had issued the disputed cheque, which was on presentation dishonoured for the reason 'funds insufficient'. O.P.(Crl) No. 171 OF 2014 2 In spite of notice issued, the petitioner had not paid the amount. So, the complainant has filed the complaint. The allegations are not proper. The complainant was examined as PW1 and the Manager of the Bank was examined as PW2 and an employee of a private courier company was examined as PW3. The evidence of the complainant was closed. Thereafter, the complainant filed a petition to re-open the evidence so as to examine the expert and that petition was allowed and the complainant was directed to pay batta for the same. Though Ext.P4 petition was allowed as early as in the year 2009, the complainant had not taken steps to summon the witnesses. It is being adjourned unnecessarily. So, the petitioner has no other remedy except to approach this Court seeking the following reliefs:
"i. Issue a direction to the J.F.C.M. Court, Devikulam to dispose of C.C. No. 244/2001 within the shortest possible time limit which may be fixed by this Honourable Court.
ii. Grant such other reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the O.P.(Crl) No. 171 OF 2014 3 case."
3. On the basis of the allegation and the nature of relief claimed, this Court felt that the petition can be disposed of after hearing the learned counsel for the petitioner and learned Public Prosecutor and dispensing with notice to the 1st respondent and after getting a report from the concerned court. Accordingly, a report has been called for and the learned Magistrate has sent a report which reads as follows:
"C.C. 244/2011 of this court is a case taken on file on 6/10/2011 U/S. 138 of N.I. Act. The case was earlier disposed of U/S 256(1) Cr.P.C. on 8/1/2003. Thereafter as per Order in Crl.A. No. 300/2003 dated 3/4/2007 of the Hon'ble High Court of Kerala the case was again considered for fresh trial. Four witnesses were examined on the part of complainant. Then the complainant had filed an application for sending the document in question to the Forensic Science Laboratory, Thiruvananthapuram, which was allowed on 20/4/2010. Thereafter the questioned document along with standard documents were send to FSL, Thiruvananthapuram. Subsequently report vide No. BS-87/2010 dated 3/3/2012 was received from the FSL. As per the order sheet the receipt of the O.P.(Crl) No. 171 OF 2014 4 FSL report is seen recorded on 29/3/2012. Then on 24/5/2012 the complainant sought time for examination of witness and the case was adjourned to 28/6/2012. Again on 28/6/2012, 28/7/2012, 25/8/2012, 6/10/2012, 3/11/2012, 1/12/2012, 5/1/2013, 2/3/2013, 30/3/2013, 6/6/2013 the complainant sought time for taking steps for examination of witness and it was allowed. Altogether ten chances were given for taking steps for examination of witness. On 28/6/2013, since the complainant has failed to take steps for examination of witness, despite granting ample opportunity, evidence of complainant was closed and case was posted to 25/7/2013. On 25/7/2013, complainant filed petition under section 311 Cr.P.C. to re- open the evidence and the petition was allowed and the complainant took steps for examination of Asst. Director, FSL, Thiruvananthapuram and steps was issued and case posted to 29/8/2013 for return of summons. On 29/8/2013 the witness was absent, despite service of summons, complainant sought time for taking further steps and case was adjourned to 27/10/2013. There was no sitting on 27/10/2013 and case was adjourned to 30/11/2013. On that day complainant sought time for taking steps and case was posted to 31/1/14. On 31/1/14 also complainant sought time and hence last chance was ordered and case was posted to 29/3/2014. On 29/3/2014 O.P.(Crl) No. 171 OF 2014 5 also complainant failed to take steps and case was adjourned to 19/7/14. On 19/7/14, the evidence of complainant was closed for his failure to take steps and case was posted to 8/8/14. On 8/8/14 complainant filed CMP No. 1192/14 under section 311 Cr.P.C. to re-open the evidence. Now the said application is posted to 14/8/14 for objection and hearing.
Subject to the order in CMP No. 1192/2014, if complainant takes steps to examine witness [Asst. Director, FSL] in normal course, witness could be examined within one month but, if the witness fails to appear, again process has to be repeated. If the complainant is prompt in taking steps, I expect that presence of witness could be procured within two months. It is not sure, complainant is having any further evidence, after examination of the expert. If the evidence of complainant could be closed after examination of expert, examination of accused under section 313 Cr.P.C. could be recorded. If the accused wants to adduce any defence evidence, opportunity shall be afforded to him. As and when evidence of both, complainant and accused, are over the case could normally be heard within one or two weeks and it could be disposed off in next three days."
4. Heard both sides.
5. On going through the report, it is seen that the case was O.P.(Crl) No. 171 OF 2014 6 once disposed of and an appeal has been preferred as Crl.A. No. 300/2003 before this Court and this Court allowed the appeal as per the judgment dated 03.04.2007 for fresh consideration by giving an opportunity to the complainant to adduce further evidence. It is also seen from the report that after that, certain witnesses were examined including the complainant and the disputed cheque was sent to expert opinion and an opinion has been obtained from the hand writing expert from Forensic Science Laboratory, Thiruvananthapuram. After examining the witnesses, the complaint's evidence was closed and it was posted for examination of the accused under Section 313 Cr.P.C. and at that time, the complainant filed an application under Section 311 Cr.P.C. to re-open evidence and to summon the Assistant Director, Forensic Science Laboratory, Thiruvananthapuram to prove the report and that was allowed and once steps were taken by the complainant the witness was not present. Thereafter, it is being adjourned at the request of the complainant for that purpose. As per the report dated 13.08.2014, it was posted to O.P.(Crl) No. 171 OF 2014 7 14.08.2014 as the court below had closed evidence and the complainant had again filed petition under Section 311 Cr.P.C. to re-open the evidence, as Crl. M.A. No. 1192/2014. So, it is seen from the report that the delay occurred on account of the conduct of the complainant. Considering the fact that the case is of the year 2001 and as per the provisions of the Negotiable Instruments Act, the complaint filed under Section 138 of the Negotiable Instruments Act, has to be disposed of within six months of filing of the complaint, the grievance of the petitioner that it is being delayed indefinitely, is genuine. So, considering the circumstances, this Court feels that petition can be disposed of directing the learned magistrate to dispose of the case within a time frame. So, the petition is disposed of as follows:
The Judicial First Class Magistrate Court, Devikulam is directed to dispose of C.C. No. 244/2001 pending before that court as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order.
With the above direction and observations, this original O.P.(Crl) No. 171 OF 2014 8 petition is disposed of. Office is directed to communicate the direction of this Court immediately.
Sd/-
K. RAMAKRISHNAN
JUDGE
sd
// TRUE COPY // P.A. TO JUDGE