Abdul Nishad P.H. v. Assanar.P.A and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 21ST DAY OF AUGUST 2019 / 30TH SRAVANA, 1941** ## **Crl.MC.No.5285 OF 2019(A)** **AGAINST THE ORDER/JUDGMENT IN ST 184/2016 DATED 17-06-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV, PALAKKAD** ## **PETITIONER/COMPLAINANT:** **ABDUL NISHAD.P.H.,S/O. HAMZA, AGED 38 YEARS, POTTAMPULAKKAL HOUSE, MANNUR POST, PALAKKAD 678 642** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.JOPHY POTHEN KANDANKARY** ## **RESPONDENTS/ACCUSED & STATE:** **1 ASSANAR.P.A AGED 47 YEARS S/O. AHAMMED RAWTHER, PAZHAYAPEEDIKAKKAL HOUSE, KIZHAKKUMPURAM P.O, MANNUR, PALAKKAD 678 642** **2 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031** ## **OTHER PRESENT:** ## **PP ADV.C.K.PRASAD** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.5285 OF 2019** **2** ## **ORDER** **Dated this the 21st day of August 2019** The petition on hand is directed against separate orders passed by Judicial First Class Magistrate Court-IV, Palakkad (for short 'the trial court') on 17.06.2019 in C.M.P.Nos.547 of 2019, 553 of 2019 and 202 of 2019 in S.T.No.184 of 2016. The petitioner herein is the complainant in S.T.No.184/2016. 2. S.T.No.184 of 2016 is a prosecution initiated by the petitioner herein against the 1[st] respondent under Section 142 of the Negotiable Instruments Act, 1881 (for short 'the Act') alleging commission of an offence punishable under Section 138 of the Act. In S.T. No.184 of 2016, trial was commenced and the petitioner herein (complainant) was examined as PW1. Certain documents were also marked in evidence on his side. The accused has denied the transaction pleaded by the complainant in the complaint in toto, copy of which is appended to this petition as Annexure-A. The case of the accused was that the cheque in question was falsely obtained by the petitioner from the office of the accused, while **Crl.MC.No.5285 OF 2019** **3** conducting a real estate business jointly. In the civil suit filed as O.S.No. 241 of 2014 before the Additional Sub Court, Palakkad by the complainant as plaintiff based on the disputed cheque in the prosecution on hand, the accused was examined as DW1. The accused has taken a stand during examination that real estate business was not run jointly by himself and the petitioner. While being cross examined, the accused has suggested to DW1, a position contra to that taken by him in the civil case. In the said circumstances, C.M.Ps referred to above were moved by the petitioner before the trial court to bring forth the contrary version taken therein. The trial court has considered the applications and dismissed those vide separate orders passed on 17.06.2019. C.M.P.No.202 of 2019 was filed under Section 311 Cr.P.C for getting the evidence of the petitioner reopened. C.M.P.No.553 of 2019 was filed for recalling PW1 for the purpose of marking the deposition of DW1 in O.S.No.241 of 2014. C.M.P No.547 of 2019 was also filed for accepting the certified copy of the deposition of DW1 in O.S.No.241 of 2014. The trial court has dismissed all applications. Trial court has observed in the order that the **Crl.MC.No.5285 OF 2019** **4** accused failed to examine himself in the prosecution on hand. It is further observed that the accused did not even propose to examine himself. The court held in the context that the petitioner is not entitled to get an order permitting him to adduce the deposition of the accused in another case as a documentary evidence in the case on hand. Accordingly, the application was dismissed and in consequence, the other applications were also dismissed. 3. The learned counsel for the petitioner has contended that the certified copy of the deposition is a public document under Section 74 of the Indian Evidence Act, 1872 (for short 'the Evidence Act') and being a public document, it is liable to be received in evidence. It is also contended by him that under Section 33 of the Evidence Act, the petitioner is entitled to call for and mark the certified copy of the deposition of the accused in evidence. According to him, the accused has taken inconsistent stand while being examined as DW1 in a civil case relating to the cheque in question and while putting suggestion to PW1 during his cross examination in the prosecution on hand. According to him the specific case **Crl.MC.No.5285 OF 2019** **5** of the petitioner was that some amount was borrowed by the accused from him and the disputed cheque was issued to him to discharge the liability that arose therefrom. The case of the accused in the prosecution was that a real estate business was run jointly by himself and the petitioner and blank signed cheques were entrusted to the latter. According to him, one of such cheques was misused by the petitioner to launch the prosecution in question. During cross examination the accused has spoken that there was a joint business among himself and the petitioner and one of the cheques given in the course was misused to prosecute him. According to the learned counsel, in the civil suit relating to the disputed cheque, conduct of a joint business by himself and the complainant was categorically denied by the accused. The learned counsel urged that under Section 33 of the Evidence Act the deposition of the witness in an earlier proceeding is admissible in evidence in a subsequent proceeding and therefore, the prayer of the petitioner to re-call PW1 for the purpose of marking of deposition of the accused in evidence in a Civil suit is liable to be allowed. The dictum in _**Vempati**_ **Crl.MC.No.5285 OF 2019** **6** ## _**Venkateswar Rao v. Challa Vijaya and Another [2016**_ _**KHC 2764 ]**_ is also cited to rest his contention. 4. In a prosecution under Section 138 of the Act, burden is on the complainant to establish the transaction and execution of the cheque. As put forth by the learned counsel, the transaction alleged in the complaint was borrowal of a sum and issuance of the disputed cheque towards discharge of the amount. The complainant will succeed in the prosecution only if he establishes the execution of the cheque. In the case on hand the complainant failed to discharge his burden to establish his case. His attempt is only to disprove the case of the accused. The complainant need not be bothered about the case of the accused. The complainant need only to establish his case with cogent and reliable evidence. The argument advanced by the learned counsel based on Sections 74 and 33 of the Evidence Act will not help the petitioner in any manner in the context as described hereinabove. 5. The document sought to be marked is the deposition of the accused in a concluded Civil proceeding between himself and the complainant in the prosecution on **Crl.MC.No.5285 OF 2019** **7** hand. Depositions are undoubtedly documents forming the acts or records of the acts of the court and unlike records of the court, those are public documents. To see whether the argument advanced by the learned counsel on admissibility of deposition of the accused as a witness in a civil proceeding in evidence on the strength of Section 33 is tenable or not, an idea about the provision is relevant and therefore extracted hereunder: _“S.33. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Provided-_ _that the proceeding was between the same parties or their representatives in interest;_ _that the adverse party in the first proceeding had the right and opportunity to cross-examine;_ _that the questions in issue were substantially the same in the first as in the second proceeding._ _Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.”_ 6. The Section provides that the evidence given by a witness in an earlier judicial proceeding, or before any person **Crl.MC.No.5285 OF 2019** **8** authorised by law to take evidence, is relevant in a subsequent judicial proceeding, or at a later stage of the same judicial proceeding, for the purpose of proving the truth of the facts contained therein if certain conditions mentioned in the Section are satisfied. 7. Annexure-D is the copy of C.M.P.No.202 of 2019 filed before the trial court under Section 311 Cr.P.C. It is not pleaded therein by the petitioner that conditions warranting marking of deposition of witness (accused) in a Civil suit in evidence is available in the case on hand. For obtaining the benefit of Section 33 Evidence Act, the party seeking for it must plead or prove that any of the conditions as envisaged under Section 33 of the Evidence Act exist. 8. In **Vempati** supra relied on by the petitioner, it is held that a reference having not been made about existence of any of the conditions as contemplated under Section 33 of the Evidence Act, deposition of a witness recorded in an earlier proceedings between the same parties cannot be brought on record in evidence. The circumstances are : - (a) when the witness is dead; **Crl.MC.No.5285 OF 2019** **9** - (b) when he cannot be found; - (c) when he is incapable of giving evidence; - (d) when he is kept out of the way by the adverse party; and - (e) when his presence cannot be obtained without an amount of delay or expense which the court considers unreasonable. 9. A circumstance of the nature having not been raised by the petitioner in Annexure-D application, the argument of the learned counsel based on Section 33 is liable to fail. For the reasons, the orders under challenge do not call for interference. In the result, Crl.M.C is dismissed. **Sd/-** ## **MARY JOSEPH** **JUDGE** NAB/ttb **Crl.MC.No.5285 OF 2019** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE COMPLAINT IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PALAKKAD ANNEXURE B TRUE COPY OF THE PETITION IN CMP NO. 547/2019 IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PALAKKAD ANNEXURE C TRUE COPY OF THE DEPOSITION OF DW1 IN OS 241/2014 ON THE FILE OF ADDITIONAL SUBORDINATE JUDGES COURT, PALAKKAD ANNEXURE D TRUE COPY OF THE PETITION IN CMP NO. 202/2019 IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PALAKKAD ANNEXURE E TRUE COPY OF THE PETITION IN CMP NO. 553/2019 IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PALAKKAD. ANNEXURE F CERTIFIED COPY OF THE ORDER PASSED IN CMP NO. 547/2019 IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRTE COURT-IV, PALAKKAD. ANNEXURE G CERTIFIED COPY OF THE ORDER PASSED IN CMP NO. 553/2019 IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PALAKKAD. ANNEXURE H CERTIFIED COPY OF THE ORDER PASSED IN CMP NO. 202/2019 IN S.T NO. 184/2016 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, PALAKKAD. //TRUE COPY//** **P.S. TO JUDGE**