Kerala High Court
Jinny Joseph vs State Of Kerala on 26 November, 2015
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937
Crl.MC.No. 7885 of 2015
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CRL.M.P.1612/2005 IN IA.2340/2003 IN A.S.422/2003 OF IIIRD ADDITIONAL DISTRICT
COURT, THRISSUR.
.............
PETITIONER/RESPONDENTS:
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JINNY JOSEPH, AGED 66 YEARS,
W/O.DR JOSEPH KUNJU,
RAM LEELA ROAD, S N ROAD,
CHELAKOTTUKARA, THRISSUR DISTRICT.
BY ADVS.SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
SMT.VINAYA V.NAIR
RESPONDENT(S)/STATE & PETITIONER:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. N D JOY, AGED 77 YEARS,
S/O.LATE N P DEVASSSY, NEELAMKAVIL BHAVAN,
CHERUPARAMBATH ROAD, IST CROSSING,
KADAVANTHRA, KOCHI 20, ERNAKULAM DISTRICT.
R1 BY PUBLIC PROSECUTOR SMT.P.MAYA
R2 BY ADV. SMT.RANI JOY
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 11-02-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
mbr/
Crl.MC.No. 7885 of 2015
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE A:- TRUE COPY OF IA 2340/2003 IN AS 422/2003 ON THE FILE OF
IST ADDITIONAL DISTRICT, THRISSUR.
ANNEXURE B:- TRUE COPY OF COUNTER IN IA 2340/2003 IIN AS 422/2003 ON
THE FILE OF IST ADDITIONAL DISTRICT COURT, THRISSUR.
ANNEXURE C:- TRUE COPY OF ORDER IN IA NO 2340/03 IN 422/2003 ON THE
FILE OF IST ADDITIONAL DISTRICT COURT, THRISSUR.
ANNEXURE D:- TRUE COPY OF ORDER DTD 16/11/2004 IN CRP NO 999/2004
BEFORE THIS HON'BLE COURT.
ANNEXURE E:- TRUE COPY OF VAKALATH SIGNED BY THE PETITIONER IN
AS 422/2003 BEFORE THE IST ADDITIONAL DISTRICT COURT,
THRISSUR.
ANNEXURE F:- CERTIFIED COPY OF CRL.MP 1612/2005 IN IA 2340/03 IN
AS 422/2003 ON THE FILE OF IST ADDITIONAL DISTRICT
COURT, THRISSUR.
ANNEXURE G:- TRUE COPY OF COUNTER IN CRL.MP 1612/2005 IN IA 2340/03 IN
AS 422/2003 ON THE FILE OF IST ADDITIONAL DISTRICT
COURT, THRISSUR.
ANNEXURE H:- CERTIFIED COPY OF THE PROCEEDINGS IN U/S 340/CRPC
INITIATED IN AS 422/2003 ON THE FILE OF IIIRD ADDITIONAL
DISTRICT COURT, THRISSUR.
RESPONDENT(S)' EXHIBITS:
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ANNEXURE R2(A) : A TRUE PHOTOCOPY OF THE DEPOSITION DATED 26.11.2015
BY PW1 CLERK C.K.BIJU.
ANNEXURE R2(B) : A TRUE COPY OF THE SUMMONS DATED 28.11.2015 ISSUED BY
3RD ADDL. DISTRICT COURT, TRICHUR IN A.S.NO.422/03 TO
ADV.P.S.EASWARAN.
ANNEXURE R2(C) : TRUE COPY OF THE BATTA MEMO DATED 28.11.2015 FOR
RS.10/- ISSUED IN THIRD ADDL. DISTRICT COURT, TRICHUR IN
AS.422/03 TO ADV.P.S.EASWARAN.
ANNEXURE R2(D) : A TRUE COPY OF DECREE DATED 9.4.03 IN OS.3560/01 ISSUED
BY 1ST ADDL. MUNSIFF COURT, TRICHUR(MR.K.P.SUDHIR)
ANNEXURE R2(E) : A TRUE COPY OF APPLICATION DATED 22.1.2015 BEFORE THE
NOADAL OFFICER MEDIATION CENTRE, TRICHUR IN
A.S.NO.422/2003 AND CRL.M.P.NO.1612/2005 SHOWING
ARREARS OF RENT.
--2--
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Crl.MC.No. 7885 of 2015
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ANNEXURE R2(F) : A TRUE COPY OF THE WARRANT DATED 25.8.2003 ISSUED BY
THE PRL. MUNSIFF TRICHUR IN OS.NO.965/97(EP934/02
PENDING) IN THE NAME OF DR.JOSEPH KUNJU (MBBS DGO
THE JD) THE HUSBAND OF THE PETITIONER.
ANNEXURE R2(G) : A TRUE COPY OF THE ARGUMENT NOTE DATED 19.8.2015 IN
CRL.M.P.1612/2005 IN I.A.NO.2340/2003 IN A.S.NO.422/2003.
ANNEXURE R2(H) : A TRUE COPY OF REPLY NOTE AGAINST OBJECTION BY
NAMELESS COUNSEL BYWAY OF AN AFFIDAVIT.
ANNEXURE R2(I) : A TRUE OPY OF THE DELIVERY.
//TRUE COPY//
P.S.TO JUDGE
mbr/
B. KEMAL PASHA, J.
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CRL.M.C. No. 7885 of 2015
...............................................................
Dated this the 11th day of February, 2016
O R D E R
Heard the learned counsel for the petitioner and the 2nd respondent, who is the party in person. It seems that the proceedings in this case have been initiated by the III Additional District Judge, Thrissur, under Section 340 Cr.P.C. in A.S. 422/2003 through Annexure H. The learned Additional District Judge has ordered to issue summons to the attesting clerk in the vakkalath to appear on 26.11.2015. On 26.11.2015 the learned Additional District has recorded that, "Witness in Section 340 Cr.P.C. proceedings present. Examined as CW1. Issue summons to Advocate P.S. Easwaran. Call on 10.2.2015."
2. A.S.No.422/2003 was filed before the court below along with I.A.No.2340/2003 for getting the delay of five CRL.M.C.No. 7885 of 2015 -: 2 :- days in filing the appeal, condoned. In the affidavit in support of the said IA, it was affirmed by the petitioner that she was laid up for the period from 12.09.2003 to 19.09.2003 and therefore, she could not meet her lawyer and to sign the appeal. The same is the true translation of the versions made by her in Malayalam. The delay was condoned. The matter was challenged through C.R.P. before this Court as C.R.P. 999/2004. The said C.R.P. was dismissed.
3. The 2nd respondent preferred Crl.M.P. No.1612 of 2005 before the court below alleging offences punishable under Sections 183, 192 and 193 IPC against the petitioner herein and sought for steps under Section 340 Cr.P.C. against the petitioner on the ground that the vakkalath was executed by the petitioner on 19.09.2003 itself. According to the petitioner, what is affirmed by the petitioner in the affidavit is false in the light of the fact that the vakkalath was executed on 19.09.2003. It is on that ground, the 2nd CRL.M.C.No. 7885 of 2015 -: 3 :- respondent has filed Annexure F before the court below, for initiating proceedings under Section 340 Cr.P.C.
4. The petitioner filed Annexure G counter before the court below whereby she has stated that she signed the vakkalath at her residence. Even if she signed the vakkalath at her residence on 19.09.2003 in the presence of her lawyer, it will not militate against the affirmation made by her in the affidavit that she was laid up for the period from 12.09.2003 to 19.09.2003. She has affirmed that she was laid up from 12.09.2003 and therefore, she could not meet her lawyer. Her case is that she has executed the vakkalath at her house on 19.09.2003.
5. Annexure E is the vakkalath. The vakkalath has been attested by Advocate Sri.P.S. Easwaran, Thrissur, by noting down that "personally known to me and signed before me and accepted." There is no law that a lawyer should accept a vakkalath at his office or his house alone. What is contemplated as per law is that the vakkalathnama CRL.M.C.No. 7885 of 2015 -: 4 :- should be executed in the presence of the concerned lawyer. Whether it was executed at the office of the advocate or at the house of the advocate or at the house of the appellant or at a private place or at a public place, the vakkalath will not become invalid, in case it is executed in the presence of the concerned lawyer. The attestation of the counsel only shows that the vakkalath was executed in his presence. He has not recorded the place at which the vakkalath was executed. When the petitioner was laid up for the period from 12.09.2003 to 19.03.2003, Annexure G counter filed by the petitioner, affirming that she has signed the vakkalath at her residence and handed over to her advocate at her residence, can only be considered as correct.
6. It is evident that there are no grounds at all in the matter to initiate the proceedings under Section 340 Cr.P.C. There is absolutely nothing to show that the petitioner has committed any of the offences coming under clause (b) of CRL.M.C.No. 7885 of 2015 -: 5 :- sub-section (1) of Section 195. Only in a case wherein there is at least something to suspect that a person has committed an offence referred to in clause (b) of sub-section (1) of 195 Cr.P.C., the provisions under Section 340(1) Cr.P.C. can be attracted. Here, it seems that the court below is proceeding with an unnecessary proceedings. It seems that unnecessarily the lawyer is also being summoned. The entire proceedings initiated by the court below based on Annexure-F are not legally sustainable and therefore, the same are liable to be quashed.
In the result, this Crl.M.C. is allowed and Annexure-F petition and all proceedings pursuant thereto on the file of the III Additional District Court, Thrissur under Section 340 (1) Cr.P.C. in A.S.No.422/2003, are hereby quashed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
[True copy] P.S. to Judge