Best Trading Company, Thrissur v. P.P. Sukutty and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 19[TH] DAY OF SEPTEMBER 2022 / 28TH BHADRA, 1944** **CRL.MC NO. 4148 OF 2013** **AGAINST THE ORDER CRMC 4880/2010 OF HIGH COURT OF KERALA** **CC 1171/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **THRISSUR** ## **PETITIONER/COMPLAINANT :** **BEST TRADING COMPANY, THRISSUR THRISSUR, REP. BY P.AJITH, S/O.ACHUTHAN NAIR, RESIDING AT PARANGODATH HOUSE, NETTISSERY, THRISSUR DISTRICT.** **BY ADV SRI.K.B.GANGESH** ## **RESPONDENTS/ACCUSED & STATE :** - **1 P.P.SUKUTTY, PROPRIETOR, SINCERE CEMENT TRADERS, PALAKKAD.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. BY ADVS. SHAKTHI PRAKASH HARIKRISHNAN M.S.** ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **19.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO.4148/2013** **2** ## BECHU KURIAN THOMAS, J ......….................................. Crl.M.C.No.4148 of 2013 ….................................. Dated this the 19th day of September, 2022 ## ORDER Petitioner challenges an order dated 26.07.2013 in M.P.No.1843/2013 in C.C.No.1171/2004 on the files of the Judicial First Class Magistrate Court-I, Thrissur. By the impugned order, the trial court rejected an application to recall the summons issued to two witnesses to be examined on behalf of the accused. For easier comprehension, petitioner shall be referred to as complainant and the 1 st respondent as accused, in this judgment. 2. Before narrating the facts, this Court notes with surprise the long pendency of this case, that too, on an issue relating to an application for recalling summons. A complaint under Section 138 of the Negotiable Instruments Act, 1881 [for short, the Act], still remains in the Magistrate's Court for the last 18 years, without even completing trial. **CRL.MC NO.4148/2013** **3** 3. Complainant in C.C.No.1171/2004 on the files of the Judicial First Class Magistrate Court, Thrissur alleging offences punishable under Sections 138 of the Act is a proprietory concern. After the power of attorney holder of the petitioner was examined in January, 2006 when the accused was called upon to enter his defence, he filed petitions as Crl.M.P.No.9042/2007 to examine himself as defence witness and another petition for a direction to the complainant to produce certain documents. Petitioner produced one of the documents sought for by the accused and filed an affidavit to the effect that the other documents are not in his possession. 4. After the accused was examined as a defence witness, another petition was filed by him under Section 311 of Cr.P.C. to recall and re-examine PW1. The said petition was allowed and PW1 was re-examined. It is relevant to mention that on 29.06.2009 the court had issued summons to the defence witnesses, in which one of the witnesses was the complainant himself. Therefore, the **CRL.MC NO.4148/2013** **4** complainant challenged the order issuing summons to him in Crl.M.C.No.2409/2009 before this Court. It is pertinent to mention that, though the accused had filed the petition to summon only witnesses 3 to 6, in the witness list the learned Magistrate without noticing the said fact had issued summons to examine all the witnesses (i.e., witnesses 1 to 6). By order dated 05.08.2009, this Court disposed of the Crl.M.C.No.2409/2009 and quashed the order and directed the Magistrate to re-consider whether the witnesses shown in the list are to be examined or not and whether their evidence is relevant. 5. Subsequently, the learned Magistrate by order dated 08.01.2010 again issued summons to all the six witnesses. When the order issuing summons to all the witnesses was challenged by the complainant before this Court in Crl.M.C.No.264/2010, by judgment dated 02.07.2010, this Court, dismissed the case after observing that if the order issuing summons to all witnesses is only a clerical error, remedy of the **CRL.MC NO.4148/2013** **5** complainant is to move the learned Magistrate for correcting the said mistake. 6. However, complainant's application to correct the clerical error in the order was later dismissed by the learned Magistrate on 12.11.2010, after noticing that issuance of summons to the witness was a well considered order and cannot be stated to be a clerical or typing error. The aforesaid order of the Magistrate was challenged before this Court in Crl.M.C.No.4880/2010 and by order dated 14.12.2010, this Court held that if documents are to be produced, the accused has to file a separate petition showing the details of the documents required and if such an application is preferred, the learned Magistrate must consider the same and pass appropriate orders in accordance with the law. 7. In tune with the aforesaid observations of this Court, a fresh petition was filed by the accused as Crl.M.P.No.559/2011 specifying the details of the documents to be produced by the complainant. By order dated 05.02.2011, the learned Magistrate dismissed the **CRL.MC NO.4148/2013** **6** said petition after observing that the documents sought to be produced will be in the possession of the accused also. Thus, the petitions seeking to produce the documents had ended in dismissal, which was never challenged. 8. Surprisingly, the learned Magistrate, thereafter, issued summons to all the witnesses again, to appear for evidence on 03.11.2011. As mentioned earlier the witness list had mentioned one of the witnesses as the complainant himself but as a proprietor of another concern. Immediately complainant filed a petition to recall the summons issued to the “Proprietor of National Cement Corporation” [for short, 'NCC'] and his wife contending that the petition seeking production of documents through the complainant was rejected earlier and, therefore, the summons presently issued to the complainant himself though as proprietor of another concern ought to be recalled. 9. During the course of the arguments, it was also pointed out that the proprietor of the Best Trading Company and **CRL.MC NO.4148/2013** **7** that of NCC are one and the same and therefore summoning the proprietor of the NCC is as good as summoning the complainant himself and since a complainant cannot be examined as a witness on behalf of the accused, issuance of summons to the first and second witnesses in the list was perverse and illegal. 10. The learned Magistrate despite noticing that the issuance of summons to the complainant is legally impermissible, rejected the application stating that a criminal court cannot review its earlier order and also that the complainant had not raised any such objection. It is in such circumstances that the complainant has approached this Court challenging the order dated 26.07.2013 in Crl.M.P.No.1843 of 2013 in C.C.No.1171 of 2004. 11. I have heard Sri.K.B.Gangesh, the learned counsel for the complainant as well as Sri.Harikrishnan M.S., the learned counsel for the accused. 12. The learned counsel for the complainant contended that the learned Magistrate erred in failing to recall the **CRL.MC NO.4148/2013** **8** summons issued to the complainant. 13. The learned counsel for the accused on the other hand submitted that since the person sought to be summoned as a witness is the Proprietor of NCC and the said entity being not the petitioner in the present case, there is no embargo in examining him as a witness on behalf of the accused. 14. Sri.Harikrishnan M.S., the learned counsel for the respondent, also relied upon an unreported decision of the Madras High Court in Crl.R.C.(MD) No.954/2021 dated 13.04.2022 and canvassed for the preposition that even otherwise there is no bar in examining the complainant as a witness on behalf of the respondent/accused. The learned counsel also attempted to distinguish the decisions relied upon by the learned counsel for the petitioner. 15. I have considered the rival contentions. 16. By judgment dated 14.12.2010, in Crl.M.C.No.4880/2010, this Court had observed that if the documents are to be produced the respondent has to **CRL.MC NO.4148/2013** **9** file a separate petition showing the details of the documents and the Magistrate must consider the same and pass appropriate orders. Pursuant to the said order, the accused filed a petition seeking to issue summons to produce documents by the complainant as Crl.M.P.No.559/2011. The said petition was dismissed by order dated 05.02.2011. Pursuant to the aforesaid order, on the basis of Annexure-L judgment of this Court, if summons has to be issued to the complainant, the same could have only been for the purpose of producing any documents. Without bearing in mind the judgment of this Court in Annexure-L, the learned Magistrate issued summons to the proprietor of the NCC to be examined as a witness in the case. 17. It is trite law that a proprietary concern is legally and factually the proprietor himself. There is no separate legal entity for a proprietary concern dehors the proprietor. Therefore, when summons is sought to be issued to NCC in which the proprietor is the same as the complainant himself, it certainly tantamounts to **CRL.MC NO.4148/2013** **10** examining the complainant as a witness on behalf of the accused. 18. In the decision in Thomas v. Vijayakumari 2002 (1) KLT 689 this Court had held that an accused has no right to have the complainant examined as a witness on his side and no direction need be given to the Magistrate to issue summons to the complainant for examining him, as a witness on behalf of the accused. 19. In the decision in S.M.D.Mohamed Abdul Khader v. Muniswari Crl.R.C.(MD) No.954/2021 dated 13.04.2022, the Madras High Court had not considered the specific question as to whether a complainant can be examined as a witness on behalf of the accused. I do notice that in the said judgment, the witness list mentioned the complainant as a witness on behalf of the accused. However, since the said decision had not specifically considered the question in issue in the present case, I am of the view that the judgment in Mohammed Abdul Khader's Case (supra) is not applicable. 20. As held in the judgment in Thomas case (supra), a **CRL.MC NO.4148/2013** **11** complainant cannot be examined as of right as a witness on behalf of the accused. The attempt of the accused is to examine the proprietor of NCC, who is the same Proprietor as that of Best Trading Company. The attempt is certainly to examine the complainant as a witness on behalf of the accused. The impugned order is, therefore, irregular since the attempt of the respondent was not to seek review of the order issuing summons, but only to recall the order issuing summons to the petitioner. Petition to recall the summons cannot be equated as a petition to review and, hence, I am of the view that the impugned order is liable to be set aside. The order issuing summons to the Proprietor of NCC is, therefore, set aside. 21. As far as the second witness in the witness list i.e., the wife of the petitioner, is concerned, specific documents are not sought to be produced and since by Annexure-O order dated 05.02.2011, the learned Magistrate had rejected the petition, the issuance of summons to the second witness is also irregular. **CRL.MC NO.4148/2013** ## **12** 22. Therefore, I allow this Crl.M.C and quash Annexure-Q order dated 26.07.2013 in Crl.M.P.No.1843/2014 in C.C.No.1171/2004. 23. Taking note of the long pendency of C.C.No.1171/2004, I direct the learned Magistrate to initiate appropriate steps to dispose of the case, at the earliest, at any rate, within a period of six months from the date of receipt of a copy of this order. With the above observations, this Crl.M.C. is allowed. BECHU KURIAN THOMAS JUDGE AMV/28/09/2022 **CRL.MC NO.4148/2013** **13** ## **APPENDIX OF CRL.MC 4148/2013** ## **PETITIONER ANNEXURES** **ANNEXURE A- TRUE COPY OF THE COMPLAINT IN C.C.NO.1171/2004 ON THE FILE OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR.** **ANNEXURE B- TRUE COPY OF THE PETITION DATED 21.01.2006 FILED BY THE ACCUSED IN C.C.NO.1171/2004 BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR.** **ANNEXURE C- TRUE COPY OF THE WITNESS LIST DATED 16.07.2007 FILED BY THE ACCUSED IN C.C.NO.1171/04 BEFORE THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR.** **ANNEXURE D- TRUE COPY OF THE M.P.NO.12194/2008 IN C.C.NO.1171/2004 DATED 31.07.2008 FILED BY THE ACCUSED. ANNEXURE E- TRUE COPY OF THE PROCEEDINGS OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR IN C.C.NO.1171/2004 DATED 29.06.2009. ANNEXURE F- TRUE COPY OF THE ORDER OF THIS HON'BLE COURT CRL.M.C.NO.2409/2009 DATED 05.08.2009. ANNEXURE G- TRUE COPY OF THE ORDER (PROCEEDING) DATED 08.01.2010 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR IN C.C.NO.1171/2004. ANNEXURE H- TRUE COPY OF THE ORDER DATED 02.07.2010 IN CRL.M.C.NO.264/2010 PASSED BY THIS HON'BLE COURT. ANNEXURE I- TRUE COPY OF THE PETITION DATED 06.11.2010 FILED BY THE PETITIONER IN C.C.NO.1171/2004 IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR.** **ANNEXURE J- TRUE COPY OF THE ORDER DATED 12.11.2010 IN M.P.NO.6004/2010 IN C.C.NO.1171/2004 IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I,** **CRL.MC NO.4148/2013** **14** ## **THRISSUR.** **ANNEXURE K- TRUE COPY OF THE PROCEEDINGS DATED 06.11.2010 AND 12.11.2010 IN C.C.NO.1171/2004 IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR. ANNEXURE L- TRUE COPY OF THE ORDER DATED 14.12.2010 IN CRL.M.C.NO.4880/2010 PASSED BY THIS HON'BLE COURT. ANNEXURE M- TRUE COPY OF THE CRL.M.P.NO.559/2011 IN C.C.NO.1171/2004 IN THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THRISSUR DATED 10.01.2011.** **ANNEXURE N- TRUE COPY OF THE COUNTER DATED 15.01.2011 IN ANNEXURE-M FILED BY THE PETITIONER.** **ANNEXURE O- TRUE COPY OF THE ORDER DATED 05.02.2011 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, THRISSUR IN CRL.M.P.NO.559/2011 IN C.C.NO.1171/2004.** **ANNEXURE P- TRUE COPY OF THE PROCEEDINGS OF JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, THRISSUR IN C.C.NO.1171/2004.** **ANNEXURE Q- TRUE COPY OF THE ORDER PASSED BY JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, THRISSUR ON 26.07.2013 IN CRL.M.P.1843/2013 IN C.C.NO.1171/2004.**