Areeplavan Finance v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM CR** # **PRESENT** # **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** **Crl.MC.No. 171 of 2019** **AGAINST THE ORDER/JUDGMENT IN CMP 6837/2017 of C.J.M.,THODUPUZHA DATED 26-10-2018** ## **PETITIONER/S:** **AREEPLAVAN FINANCE, REPRESENTED BY ITS PROPRIETOR, SIBY THOMAS, S/O. THOMAS, AGED 33 YEARS, AREEPLACKAL HOUSE, ELLUMPURAM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH**| ||**COURT OF KERALA, ERNAKULAM 682 031.**| |**2**|**MICHEL JOHN,**| ||**KUZHIYANIKKAL HOUSE, MUTTOM P.O, MUTTOM**| ||**VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT 685**| ||**587.**| ## **OTHER PRESENT:** **SMT.V.SREEJA,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.01.2019 ALONG WITH CRL.M.C.175/19, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.Nos. 171 & 175 of 2019** -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940** ## **Crl.MC.No. 175 of 2019** **AGAINST THE ORDER/JUDGMENT IN CMP 6833/2017 of C.J.M.,THODUPUZHA DATED 26-10-2018** **PETITIONER/S:** **AREEPLAVAN FINANCE** **THODUPUZHA, REPRESENTED BY ITS PROPRIETOR, SIBY THOMAS, S/O.THOMAS, AGED 33 YEARS, AREEPLACKAL HOUSE, ELLUMPURAM KARA, MUTTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 JESSY BINOY, CHAMAKKALAYIL HOUSE, THODUPUZHA.P.O., THODUPUZHA VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT-685584.** **OTHER PRESENT:** **SMT.V.SREEJA,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.01.2019 ALONG WITH Crl.MC.No. 171 of 2019. THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.Nos. 171 & 175 of 2019** -3- ## **CR** ## **C O M M O N O R D E R** The petitioner is the complainant in C.M.P. No.6837 of 2017 and C.M.P. No.6833 of 2017 on the files of the court of the Chief Judicial Magistrate, Thodupuzha. Both the said C.M.P.s. were filed against the accused therein alleging offence under Section 138 of the Negotiable Instruments Act (for short ' the N.I.Act'). The court below dismissed both the said CMPs for default as the petitioner was not personally present before the court. Aggrieved by the order of the court below dismissing C.M.P. No.6837 of 2017, the petitioner filed Crl.M.C. No.171 of 2019. Aggrieved by the order of the court below ## **Crl.MC.Nos. 171 & 175 of 2019** -4- dismissing C.M.P. No.6833 of 2017, the petitioner filed Crl.M.C. No.175 of 2019. 2. The petitioner is common in both the above cases, even though the 2[nd] respondent is not common. However, since the common question arises for consideration in both the said cases, I am inclined to dispose of both the above Crl.M.Cs. by this common order. 3. Service is complete. However, the party respondents have no appearance. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The question to be considered in these Crl.M.Cs. is as to whether the personal appearance of the complainant is necessary for taking cognizance of the offence ## **Crl.MC.Nos. 171 & 175 of 2019** -5- under Section 138 of the N.I. Act by the court. 6. It is clear from the orders passed by the court below that C.M.P. Nos.6837 of 2017 and 6833 of 2017 were dismissed by the court below for default on the sole reason that the complainant did not appear in person before the court . 7. The learned counsel for the petitioner and the learned Public Prosecutor have submitted that in view of the clear provisions of Section 145 of the N.I. Act, if the complainant files affidavit, the presence of the complainant must not be insisted upon before taking cognizance by the court. 8. Section 145 of the N.I. Act was introduced by Act 55 of 2002, which came into force with effect from ## **Crl.MC.Nos. 171 & 175 of 2019** -6- 6.2.2003. Section 145 of the N.I. Act deals with the evidence on affidavit, which reads as follows:- “ **145. Evidence on affidavit –** (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court, may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.” The statement of objects and reasons for enacting Section ## **Crl.MC.Nos. 171 & 175 of 2019** -7- 145 of the N.I. Act inter-alia reads as follows:- “4. Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter-alia, the following amendments in the Negotiable Instruments Act, 1881, namely- (i) to (iii) xx xx xx (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant. xx xx xx (v) (vi) to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases. ” Thus, it is clear from the statement of objects and reasons ## **Crl.MC.Nos. 171 & 175 of 2019** -8- that the amendment under Section 145 of the NI Act was introduced for dispensing with the preliminary evidence of the complainant and for the speedy disposal of the cases. 9. The Hon'ble Apex Court in Radhey Shyam Garg v. Naresh Kumar Gupta [(2009) 13 SCC 201] examined the scope of Section 145 of the N.I. Act and held in paragraph 19 thus:- “19. If an affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be crossexamined and upon completion of his ## **Crl.MC.Nos. 171 & 175 of 2019** -9- evidence, he may be re-examined. Thus, the words “examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of sub-section (2) of Section 145 of the Act”, in our opinion, would mean for the purpose of cross-examination. The provision seeks to attend a salutary purpose”. The Apex Court in Radhey Shyam (supra) held that the object of enactment of the provisions of Section 145 of the N.I. Act is for the purpose of expedition of the trial. 10. The Hon'ble Apex court in Indian Bank Association and others v. Union of India and others [(2014) ## **Crl.MC.Nos. 171 & 175 of 2019** -10- 5 SCC 590] referred to the provisions of Section 145 of the N.I. Act and held in paragraph 16 thus:- “16. Considerable time is usually spent on recording the statement of the complainant. The question is whether the court can dispense with the appearance of the complainant instead, to take steps to accept the affidavit of the complainant and treat the same as examination-in-chief. Section 145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The court has to accept the same even if it is given by way of an affidavit. The second part of Section 145(1) provides that the statement on complainant's affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or ## **Crl.MC.Nos. 171 & 175 of 2019** -11- other proceedings.” 11. The Apex court further held in Indian Bank Association (supra) in paragraph 18 thus :- “18. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court, which makes it clear that a complainant is not required to examine himself twice i.e., one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complainant for taking cognizance of the offence are good enough to be read in evidence at both the stages ie., pre-summoning stage and the post-summoning stage. In other words, there is no necessity to recall and re- ## **Crl.MC.Nos. 171 & 175 of 2019** examine the complainant after summoning of the accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act su-motu by the court.” 12. Considerable time is usually spent for recording the statement of the complainant. Section 145(1) of the N.I. Act gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The court has to accept the same even if it is given by way of an affidavit. It is abundantly clear from the object of enactment of Section 145 of the N.I. Act and the ratio laid down by the Apex Court that the personal ## **Crl.MC.Nos. 171 & 175 of 2019** -13- appearance of the complainant is not necessary for taking cognizance of the offence. Therefore, the courts dealing with the cases under Section 138 of the N.I. Act shall not insist for the personal appearance of the complainant at the pre-cognizance stage, if the complaint is accompanied by the affidavit of the complainant and the affidavit and the documents, if any, are found to be in order. This being the position, the dismissal of the complaints by the court below before taking cognizance on the reason that the complainant was not present in person before the court cannot be justified. In the result, these Crl.M.Cs stand allowed, setting aside orders dated 26.10.2018 in Crl.M.P. No.6837 of 2017 and Crl.M.P. No.6833 of 2017 and the court below ## **Crl.MC.Nos. 171 & 175 of 2019** -14- is directed to proceed with the said Crl.M.Ps. in accordance with law. The proceedings of the court below shall stand relegated to the stage prior to the dismissal of the Crl.M.Ps on 26.10.2018. The complainant shall appear before the court below in the above said cases on 15.2.2019, without further notice. Dated this the 15[th] day of January 2019. ## **sd** ## **B. SUDHEENDRA KUMAR, JUDGE** . dl/ ## **Crl.MC.Nos. 171 & 175 of 2019** -15- ## **APPENDIX in Crl.M.C. No.175 of 2017** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE COMPLAINT OF THE**| |---|---| ||**PETITIONER IN CMP NO.6833/2017 OF CHIEF**| ||**JUDICIAL MAGISTRATE COURT, THODUPUZHA.**| |**ANNEXURE A2**|**TRUE COPY OF THE CHEQUE DISHONOUR MEMO**| ||**DATED 21.10.2017.**| |**ANNEXURE A3**|**TRUE COPY OF THE DISHONOURED CHEQUE.**| |**ANNEXURE A4**|**TRUE COPY OF THE AFFIDAVIT OF THE**| ||**PETITIONER.**| |**ANNEXURE A5**|**TRUE COPY OF THE LAWYER NOTICE OF THE**| ||**PETITIONER DATED 2.11.2017.**| |**ANNEXURE A6**|**TRUE COPY OF THE ORDER OF CHIEF**| ||**JUDICIAL MAGISTRATE COURT, THODUPUZHA**| ||**DATED 26.10.2018 IN CMP.NO.6833/2017.**| ## **RESPONDENTS'S/S EXHIBITS: NIL** ## **Crl.MC.Nos. 171 & 175 of 2019** -16- ## **APPENDIX in Crl.M.C. No.171 of 2017** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT OF THE PETITIONER IN CMP NO. 6837/2017 OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA ANNEXURE A2 TRUE COPY OF THE CHEQUE DISHONOUR MEMO DATED 27-10-2017 ANNEXURE A3 TRUE COPY OF THE DISHONOURED CHEQUE ANNEXURE A4 TRUE COPY OF THE AFFIDAVIT OF THE PETITIONER. ANNEXURE A5 TRUE COPY OF THE LAYER NOTICE OF THE PETITIONER DATED 02-11-2017 ANNEXURE A6 TRUE COPY OF THE ORDER OF CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA DATED 26-10-2018 IN CMP NO. 6837/2017.** **RESPONDENTS'/S NIL EXHIBITS:**