Kerala High Court
John @ Puthett John vs M/S. White Ocean Plantations Pvt.Ltd on 15 December, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY,THE 10TH DAY OF JULY2017/19TH ASHADHA, 1939
Crl.MC.No. 5812 of 2014 ()
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CRL.MP.NO. 5093/2011 IN UNNUMBERED CC.NO.../2011 OF JUDICIAL FIRST
CLASS MAGISTRATE COURT -I, PATHANAMTHITTA
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PETITIONER/COMPLAINANT:
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JOHN @ PUTHETT JOHN,
S/O.ULAHANNAN,AGED 67 YEARS,
PUTHETT HOUSE, KOTTAMALA POST,
WEST ELERI VILLAGE, KASARGODU TALUK,
KASARGODU- 671 314
BY ADV. SRI.BIJU ABRAHAM
RESPONDENT(S)/RESPONDENTS/ACCUSEDS & STATE:
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1. M/S. WHITE OCEAN PLANTATIONS PVT.LTD.,
HAVING ITS OFFICE AT CHETHUKAYAM VILLAGE,
KARIKE POST, MADIKERI TALUK,
KODAGU DISTRICT- 571 247,
REPRESENTED BY ITS DIRECTOR, BIJU MATHEW ABRAHAM.
2. BIJU MATHEW ABRAHAM,DIRECTOR,AGED 38 YEARS,
M/S.WHITE OCEAN PLANTATIONS PVT. LTD,
RESIDING AT NANAVETTIL PUTHEN PARIMPIL HOUSE,
KOZHENCHERY EAST POST -689 641
3. BIJU MATHEW ABRAHAM, S/O.MATHEW ABRAHAM, AGED 38 YEARS,
N. PUTHENPARAMBIL HOUSE, KOZHENCHERY EAST POST-689 641
4. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA -682 011
R1 TO R3 BY ADVS. INDU SUSAN JACOB
SRI.LIJU.V.STEPHEN
R4 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 10-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Crl.MC.No. 5812 of 2014 ()
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE 1 A TRUE COPY OF THE CRIMINAL COMPLAINT FILED UNDER SECTION
138 OF NEGOTIABLE INSTRUMENTS ACT DATED 15-12-2011 BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1,PATHANAMTHITTA
ANNEXURE 2 A TRUE COPY OF THE APPLICATION FILED FOR CONDONATION OF
DELAY AS C.M.P NO.5093/2011 BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT-1,PATHANAMTHITTA
ANNEXURE 3 THE CERTIFIED COPY OF THE ORDER DATED 31-07-2014 IN C.M.P
NO.5093/2011 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-1,PATHANAMTHITTA
RESPONDENT(S)' ANNEXURES: NIL
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/TRUE COPY/
P.A.TO JUDGE
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ALEXANDER THOMAS, J.
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Crl.M.C.No.5812 Of 2014
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Dated this the 10th day of July, 2017.
O R D E R
Respondents 1 to 3 herein are the 3 accused in the impugned Anx-I complaint filed by the petitioner herein alleging offence punishable under Sec.138 of the N.I.Act. The dishonoured cheque in question dated 30.6.2011 is for Rs.10 lakhs. The order under challenge is the one at Anx-3, which reads as follows:
"Complainant absent counsel also absent. Complainant is continuously absent. This is the 5th time the case is posted for producing cover. But the complainant and counsel is continuously absent. No representation also. Hence the complaint is dismissed u/s.204(4) Cr.P.C."
2. Heard Sri.Biju Abraham, learned counsel appearing for the petitioner-complainant, Smt.Indu Susan Jacob, learned counsel appearing for R-1 to R-3 and Sri.Jestin Mathew, learned Prosecutor appearing for R-4 State.
3. It is not in dispute that Anx-1 complaint was filed along with an application to condone the delay of 3 days in filing the complaint. This Court had earlier passed order dated 15.10.2014 directing he Registry to call for a report from the trial court whether Crl.M.P.No.5093/2011 is an application for condoning the delay or whether it is the main complaint and further that if it is not the ::2::
Crl.M.C.No.5812 Of 2014 complaint, the learned Magistrate was directed to report whether the main complaint was received with any number in the proceedings and that orders orders have been passed in the complaint, etc. Pursuant to the said direction, the trial court furnished report to the Registry of this Court stating that the complaint was filed along with an application to condone the delay of 3 days in filing the complaint and on 15.12.2011 notice was issued to the respondent/accused in the delay condonation application to 7.3.2012 and the matter was posted to 7.3.2012. It is stated that on 7.3.2012 both the delay condonation application as well as the complaint were posted to 11.6.2012 for issuance of notice to respondent-accused in the delay condonation petition. It is further stated that from a perusal of the records, it is seen that no separate Criminal Miscellaneous Petition number was given to delay condonation application on 15.12.2011 and that the main complaint was numbered as Crl.M.P.No.5093/2011, when the delay condonation application was pending. After notice was ordered to the respondent, the delay condonation application was posted to 9.8.2012. But that notice is not now seen with the records. That thereafter notice was issued in the main complaint on 7.9.2012, 21.12.2102 and 7.2.2013. But the delay condonation application was not seen called since ::3::
Crl.M.C.No.5812 Of 2014 9.8.2012. A perusal of the report is quite confusing. Suffice to say, it appears that when the delay condonation application is pending, no Crl.M.P number was assigned to the delay condonation application but the Crl.M.P number was assigned to the main complaint and that the delay condonation application was pending and ultimately the learned Magistrate had never called the delay condonation application for consideration and had passed impugned Anx-3 order dismissing the main complaint on the ground of non appearance of the complainant but without passing any orders on the delay condonation application.
This course of action taken by the learned Magistrate is illegal and improper. The report furnished by the learned Magistrate is quite confusing and it is very difficult to discern meticulously the proceedings mentioned therein. But the fact of the matter remains that when the delay condonation application itself was pending, the learned Magistrate has dismissed the main complaint without passing any orders on the delay condonation application. It is also not very clear from the report of the learned Magistrate as to whether notice on the delay condonation application was duly served on the accused or whether he has entered appearance through Advocate, etc. However, since the impugned Anx-3 order states that the case was posted for the ::4::
Crl.M.C.No.5812 Of 2014 5th time to enable the learned counsel for the complainant to produce the cover. This appears to be presumably refers to the postal cover to take out summons to the accused and thus it can be inferred that the accused was never been served with notice on the delay condonation or at least there was no appearance for the accused in the delay condonation application. This Court need not go into those aspects, except to say that the course of action taken by the Magistrate dismissing the main complaint without passing any orders in the delay condonation application is to say the least, illegal and improper. Smt.Indu Susan Jacob, learned counsel appearing for respondents 1 to 3 (accused 1 to 3) would point out that even as per the averments in the impugned Anx-I complaint, it can be discerned that the case of the complainant that the dishonoured cheque in question has been issued only from the personal account of A-3 and that therefore the complaint will not lie at least as against accused Nos.1 & 2, even if it is assumed that the averments in the complaint are true and correct. These are not matters for meticulous examination at this stage of the matter. Accordingly the following directions are passed:
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Crl.M.C.No.5812 Of 2014
(i) The impugned Anx-3 order dismissing the complaint under Sec.204(4) of he Cr.P.C is declared to be without jurisdiction and that the same is illegal and improper and accordingly Anx-3 order is set aside.
(ii) Resultantly, the delay condonation application as well as the main complaint will stand restored to the file of the learned Magistrate. The trial court will issue fresh notice to the accused on the delay condonation application and after service of notice on the accused, the trial court should give a reasonable opportunity to the accused to file their objections if any against the plea for delay condonation application. Thereafter the learned Magistrate will afford a reasonable opportunity of being heard to the complainant and accused, and would render a considered decision without much delay on the plea for condonation of delay in filing the complaint.
(iii) It is also ordered that in case the learned Magistrate decides to condone the delay in filing the complaint after hearing both sides, then the learned Magistrate shall also take into consideration as to the issue whether cognizance could be taken against accused 1 & 2, going by the averments in the impugned complaint. If the learned Magistrate is of the opinion that Sec.202 Cr.P.C enquiry is warranted in order to enable the Magistrate to decide whether the case is to be proceeded or not, it will be open to the Magistrate to take such course of action also.
With these observations and directions, the Cr.M.C stands finally disposed of.
ALEXANDER THOMAS, Judge.
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