Kerala High Court
Jomon vs State Of Kerala on 12 March, 2015
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 29TH DAY OF MARCH 2017/8TH CHAITHRA, 1939
Crl.MC.No. 2457 of 2017
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ST 205/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II NORTH PARAVUR
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PETITIONER/APPELLANT/ACCUSED:
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JOMON, AGED 39 YEARS,
S/O DEVASSYKUTTY, PUTHUSSERY VEETTIL,
OLANAD,ALAGADU VILLAGE, PARAVUR TALUK,
ERNAKULAM DISTRICT PIN 683517.
BY ADV. SRI.M.G.SREEJITH
RESPONDENT(S)/ RESPONDENTS/RESPONDENTS & STATE:
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1. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, 682031.
2. PARAVUR IRON AND STELS CLUSTER PVT LTD,
REPRESENTED BY MANAGING DIRECTOR,
MICHAEL P.T, S/O THOMAS,
PADAMATTUMMEL HOUSE,MACHANTHURUTH,
VADAKKEKARA VILLAGE, ERNAKULAM DISTRICT PIN 683517.
R1 BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALATTY
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 29-03-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
K.V.
CRMC 2457 OF 2017:
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APPENDIX
PETITIONERS ANNEXURES:
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A1: COPY OF THE JUDGMENT IN ST.205/2015 DATED 12/3/2015 BEFORE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT 11, NORTH PARAVUR.
A2: COPY OF UN NUMBERED APPEAL FILED BY THE PETITIONER
ON 30.11.2016 BEFORE THE HON'BLE DISTRICT AND SESSIONS COURT,
ERNAKULAM.
A3: COPY OF CRL.MP NO 3610/2016 IN UN NUMBERED CRL.APPEAL NO /2016
BEFORE THE HON'BLE DISTRICT AND SESSIONS COURT, ERNAKULAM FILED
BY THE PETITIONER ON 30.11.2016.
A4: COPY OF CRL.MP NO 3612/2016 IN UN NUMBERED CRL.APPEAL NO/2016
BEFORE THE HON'BLE DISTRICT AND SESSIONS COURT, ERNAKULAM FILED
BY THE PETITIONER ON 30.11.2016.
RESPONDENTS ANNEXURES: NIL
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/TRUE COPY/
P.A.TO JUDGE
K.V.
ALEXANDER THOMAS, J.
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Crl.M.C.No.2457 Of 2017
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Dated this the 29th day of March, 2017.
O R D E R
The petitioner is the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act, in S.T.No.205/2015 on the file of the Judicial First Class Magistrate Court-II, North Paravur, instituted on the basis of a complaint filed by the 2nd respondent. The trial court as per the impugned judgment rendered on 12.3.2015 as per Anx.A-1 has convicted the petitioner for the offence under Sec.138 and sentenced him to undergo simple imprisonment for 3 months and to pay a fine of Rs.10.55 lakhs and in default thereof, the accused was sentenced to undergo simple imprisonment for a further period of 3 months. The fine amount so realised shall be ordered to be paid to the complainant under Sec.357(1)(b) of the Cr.P.C. Aggrieved thereby, the petitioner has preferred Anx.A-2 Criminal Appeal before the Sessions Court, Ernakulam (Court of Additional Sessions Judge-I, North Paravur). Since the petitioner was abroad, there was delay in filing the appeal and therefore he had filed Anx.A-4 application, Crl.M.P.No.3612/2016, in the Crl.A for condonation of the delay of 627 days in filing the appeal.
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Crl.M.C.No.2457 Of 2017 So also, the petitioner had preferred Anx.A-3 application, Crl.M.P.No.3612/2016, in the main appeal for suspension of the impugned sentence. It is averred that though notice on the delay condonation application was duly served on the 2nd respondent (complainant) for appearance on 28.2.2017. The appellate court had adjourned the case on the ground that the respondent has not turned up and the case was posted to 30.5.2017. The petitioner has filed a petition to advance the case to 31.3.2017, to which the appellate court directed to produce the accused on 31.3.2017 and issued non bailable warrant, etc.
2. The above Crl.M.C has been filed by invoking the extra ordinary powers conferred on this Court under Sec.482 of the Cr.P.C., with the prayer for appropriate directions to the lower appellate court to consider Anx.A-4 application, Crl.M.P.No.3612/2014 and Anx.A-3 application, Crl.M.P.No.3612/2014, for delay condonation and for suspension of sentence respectively, filed in the main appeal and for recall of the non bailable warrant issued against the petitioner.
3. Heard Sri.M.G.Sreejith, learned counsel appearing for the petitioner-accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State. In the nature of the order proposed to be passed in this petition, notice to R-2 will stand dispensed with.
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Crl.M.C.No.2457 Of 2017
4. The right to prosecute an appeal so as to impugn the judgment of conviction and sentence imposed on an accused is a precious statutory right conferred on the accused as per the provisions contained in the Cr.P.C. No doubt, such a right is not a constitutionally guaranteed right and since such a right has been engrafted by the Parliament, it should be treated as forming part of "reasonable due process" as envisaged to be an inbuilt component of Article 21 of the Constitution of India, which guarantees the right to dignity and the right to life to all citizens. True, that there has been a delay of 627 days on the part of the appellant in preferring the appeal. The appellant's counsel would point out that the appellant was abroad and this disabled him from taking effective steps to prosecute the appeal within the statutorily prescribed time. Whatever be those reasons, it is trite that the statute also confers powers to the appellate court to condone the delay, if sufficient cause has been shown therein. It is not known, what prompted the lower appellate court to issue non bailable warrant against the accused when his appeal and application for condonation of delay and application for suspension of sentence are pending consideration before the court and when he had taken diligent efforts to serve notice on the 2nd respondent. This Court is not making any further enquiry into the matter. Suffice to say that it is not proper to ::4::
Crl.M.C.No.2457 Of 2017 keep the accused on tender hooks under the threat of Damocles Sword like a non bailable warrant pending against him when he had diligently taken steps to serve notice on the delay condonation application on the opposite side. Moreover, the Apex Court has held in catena of rulings that the offence created by the Parliament since 1988 as per Sec.138 of the Negotiable Instruments Act is essentially a civil wrong, which has to be transposed to the arena of criminal culpability. The Apex Court in the case Kaushalya Devi v. Roopkishore reported in AIR 2011 SC 2566 has held that the offence of dishonour of cheques under Sec.138 of the N.I.Act is essentially a civil wrong which has been given criminal overtones and the gravity of the complaint cannot be equated with an offence under IPC and instead of jail sentence, imposition of fine payable as compensation was found sufficient to meet the ends of justice, etc. When this is the perspective, that should regulate the state of affairs in the adjudication of complaints under Sec.138 of the N.I.Act, this Court is of the view that keeping the non bailable warrant pending at a time when the application for delay condonation and application for suspension are pending, is not proper and correct. In the light of these aspects, the following orders and directions are issued:
(i) The impugned non bailable warrant issued by the Sessions Court, which is dealing with the Criminal Appeal, which arises out of S.T.No.205/2012 on the file of the Judicial First Class Magistrate Court-
II, North Paravur, will stand recalled.
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Crl.M.C.No.2457 Of 2017
(ii) In case the service of notice on the respondent-complainant has been duly completed on the delay condonation application, then the appellate Sessions Court concerned will immediately take up for consideration Anx.A-4 Crl.M.P.No.3612/2016 for condonation of delay in filing the appeal. The appellate court should ensure that orders are passed on the delay condonation application without much delay, after affording a reasonable opportunity of being heard to both sides. In case the respondent-complainant is not appearing despite service of notice, then the appellate court need not wait further and orders should be passed in the delay condonation application. The reason shown by the petitioner for the occurrence of the delay that he was abroad, etc., should be duly taken note of by that court. If the court finds that ends of justice will be met only by imposing cost, then reasonable cost may be imposed by the court below. After passing orders on the delay condonation application, the Sessions Court will ensure that necessary orders are also passed on the application for suspension of sentence and should also take steps to admit the appeal and to take steps for consideration of the appeal.
(iii) Until orders are passed on the delay condonation application as well as the application for suspension of the sentence, further coercive steps for the execution of the impugned sentence in this case against the petitioner shall not be taken.
With these observations and directions, the Crl.M.C will stand disposed of.
ALEXANDER THOMAS, Judge.
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