Claramma Thomas v. K.M. Thomas and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 ``` ``` CRL.MC NO. 1316 OF 2021 ``` ``` AGAINST THE ORDER/JUDGMENT ST 92/2014 OF JUDL. MAGI. OF FIRST ``` ``` CLASS-III, KOTTAYAM ``` ``` CRRP 20/2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, ``` ``` KOTTAYAM / II ADDITIONAL MACT, KOTTAYAM ``` ## **`PETITIONER/PETITIONER/ACCUSED:`** ``` CLARAMMA THOMAS AGED 56 YEARS W/O THOMAS, KARISSERIL HOUSE, ELLUMPURAM P.O.MUTTAM, THODUPUZHA, IDUKKI DISTRICT-685 587. BY ADVS. K.JAGADEESH SMT.V.RENJU ``` ## **`RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:`** ``` 1K.M. THOMAS KURUMULLUTHADATHIL HOUSE, KANAKKARY P.O.KOTTAYAM DISTRICT-686 632. 2STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. BY ADVS. SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H. ``` ## **`SR.PP-SRI.RENJIT GEORGE`** ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 07.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO.1316 OF 2021 ``` ``` 2 ``` ## **CR** ## **O R D E R** Dated this the 7[th] day of October, 2022 The accused in S.T.No.92/2014 on the file of the Judicial First Class Magistrate Court-III, Kottayam is the petitioner in this petition, filed under Section 482 of Cr.P.C. to quash Annexure A3 and A4 orders. 2. Complainant in the above case is the first respondent and the State of Kerala is the second respondent herein. 3. Heard the learned counsel for the petitioner as well as the learned counsel for the first respondent and the learned Public Prosecutor appearing for the State. 4. It is argued by the learned counsel for the petitioner that following the ratio in **Dashrath Rupsingh Rathod v. State of Maharashtra and** ``` CRL.MC NO.1316 OF 2021 ``` ``` 3 ``` **Another** (2014(9) SCC 129), a complaint filed by the first respondent herein before the Judicial First Class Magistrate Court-III, Kottayam, which was numbered as S.T.No.92/2014, after taking cognizance, was returned to be presented before the proper court, on the finding that the Judicial First Class Magistrate Court-III had no territorial jurisdiction to entertain the complaint. As per the order of return, the Judicial First Class Magistrate Court fixed 30 days time to file the complaint before the proper court. Since the order was dated 26.02.2015, the complainant ought to be filed before the proper court on or before 25.03.2015. It is submitted by the learned counsel for the petitioner that instead of filing the complaint, as directed by the Judicial First Class Magistrate Court-III, Kottayam, within 30 days before the proper court, after the amendment came into force whereby the Judicial First Class Magistrate Court-III, Kottayam regained jurisdiction, the same complaint was ``` CRL.MC NO.1316 OF 2021 ``` ``` 4 ``` represented before the said court with a petition to condone delay of 165 days. 5. It is submitted by the learned counsel for the petitioner that the petition for condoning delay was filed under proviso to Section 142(1)(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I.Act). It is pointed out that proviso to Section 142(1)(b) of the N.I.Act would apply only for the purpose of filing a complaint before cognizance and in this case, since the complaint was returned after taking cognizance, condonation of delay as provided under proviso to Section 142(1)(b) would not apply. But the trial court as well as the revisional court negatived the said contention. According to the learned counsel for the petitioner, since there is no provision to condone delay in the matter of re-presentation of a complaint, in the given facts in this case, the orders impugned shall not sustain and the same are liable to be set aside. ``` CRL.MC NO.1316 OF 2021 ``` ``` 5 ``` 6. Per contra, the learned counsel for the first respondent placed decision of this Court reported in **Kannothumkandy Siraj and Another V. K Subair and Others (** 2017 KHC 301) 2017(2) KLT SN 112 and argued that exactly similar issue has been considered by this Court in this decision after referring Section 142 and the proviso to Section 142(1)(b) read along with Section 470 of Cr.P.C. and it was held by this Court that the trial court has the power to condone delay in the given facts of the case. 7. Paragraph No.17 and 18 of the said judgment are relevant in this context. The same are extracted hereunder. “17. However, the fact of the matters remains that the complainant in the instant case had never represented the complaint before the "proper court" after the return of the complaint by the Chief Judicial Magistrate's Court, Thalassery, on 23.9.2014. The complaint was taken back from the Thalassery court only on 14.9.2015 and was re- ``` CRL.MC NO.1316 OF 2021 ``` ``` 6 ``` presented before the same court along with a delay condonation application as stated above. Therefore, as on the date of coming into force of the (Amendment) Ordinance, 2015 on 15.6.2015, the complaint was not re-presented at any point of time before 15.6.2015 (date of coming into force of the Amendment Ordinance) along with delay condonation application before the "proper court". But even if it is held that such complaints as in the instant one is not entitled to get the benefit of nonobstante clause in Sec.142A, there is yet another important aspect of the matter. The abovesaid legislative amendments made by the Parliament were essentially to take care of the interest of complainants, which faced dislocation in territorial jurisdiction due to the abovesaid Apex Court ruling in Dashrath Rupsingh Rathod's case supra. In this regard this Court is persuaded to bear in mind the words of judicial wisdom expounded by the Apex Court in K.Bhaskaran v. Sankaran Vaidhyan Balan & Anr. reported in (1999) 7 SCC 510, wherein in para 21 it was held that the context envisaged in Sec.138 of the N.I. Act invites a liberal interpretation to the complainant, who is presumed to be the loser in the transaction and it is for his interests, that the very provision as per Sec. 138 has been made by the legislature. Therefore, the ``` CRL.MC NO.1316 OF 2021 ``` ``` 7 ``` complainant in cases as in the instant one, cannot be placed in a position, which is far worse than the position that would have been available to him, if the Amendment Ordinance had not been brought into force. In case the N.I. (Amendment) Ordinance, 2015, had not been brought into force, then certainly by the view taken by the Division Bench in Binoy K.Mathew's case supra (paras 8 and 9 thereof), that nothing in Dashrath Rupsingh Rathod's case supra would have precluded the exercise of the statutorily conferred powers on the magistrate as per Sec.470 of the Cr.P.C. and Sec.142 clause (b) proviso thereto and that the magistrates could have lawfully considered the issue of condonation of delay in re-presenting such complaints beyond the time limit of 30 days permitted by the Apex Court. Sec. 470 of the Cr.P.C. reads as follows: **"470 Exclusion of time in certain cases.** - (1) In computing the period of limitation the time during which any person has been prosecuting with due diligence another prosecution, whether in a court of first instance or in a Court of appeal or revision against the offender, shall be excluded: Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which ``` CRL.MC NO.1316 OF 2021 ``` ``` 8 ``` from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (3) Where notice of prosecution for an offence has been given, or where, under any law for the time being in force, the previous consent, or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case may be, the time required for obtaining such consent of sanction shall be excluded. xxx xxx xxx (4) In computing the period of limitation, the time during which the offender, - (a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or (b) has avoided arrest by absconding or concealing himself, shall be excluded." ``` CRL.MC NO.1316 OF 2021 ``` ``` 9 ``` Proviso to Clause (b) of Sec.142 (1) (as it stood prior to the abovesaid amendment) reads as follows: ## **142.Cognizance of offences.-(1)** xxxx xxxx xxxx (a) xxxx xxxx xxxx (b) such complaint is made within one month of the date on which the cause-of-action arises under clause (c) of the proviso to Section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period." The said provision has not undergone any substantiative amendment, except that it has been renumbered consequent to the insertion of sub section (2) as per the Amendment Ordinance. Therefore, in the light of these aspects, this Court is constrained to take the view that even if it is held that such a complaint as in the instant one, which has not been re-presented before the "proper court', as per Dashrath Rupsingh Rathod's case supra, at any time prior to 15.6.2015, will not get the benefit of the non-obstante clause of Sec.142A(1), still the position as laid down by their Lordships of the Division Bench of this Court in Binoy K.Mathew's case supra (paras 8 and 9), could be lawfully invoked. Even if such complaint had not been re-presented at any time prior to 15.6.2015 ``` CRL.MC NO.1316 OF 2021 ``` ``` 10 ``` before the "proper court” as per the Dashrath Rupsingh Rathod's case supra, in view of the amended provisions in the N.I. (Amendment) Ordinance/Amendment Act, 2015, such complainants will have the liberty to again represent such complaints before the court having jurisdiction as per Sec. 142(2), after coming into force of that amended provision. But such representation should be accompanied by a requisite application of condonation of delay, and in that process, the magistrate court concerned could lawfully consider the question of delay condonation in re-presenting the complaint by taking recourse to the powers conferred under Sec.470 of the Cr.P.C. read with proviso to clause (b) of Sec. 142. 18. But in such cases, the propriety and fairness demand that prior notice should have been issued to the accused before taking a considered decision thereon, mainly because the power envisaged in Sec. 470 of the Cr.P.C. or under proviso to clause (b) of Sec. 142 could be exercised only after affording a reasonable opportunity of being heard to the affected party (accused).” 8. It is true that a plain reading of Proviso to Section 142(1)(b), makes it appear that cognizance of a ``` CRL.MC NO.1316 OF 2021 ``` ``` 11 ``` complainant may be taken by the court after the prescribed period if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. But there is no specific provision dealing with condonation of delay in cases where a complaint, which is returned for presentation before a proper court, when re-presented before the same Court, which returned complaint, after the period fixed for representing the complaint before the proper court, when the said court regain jurisdiction, by way of amendment, as depicted in this case. However, in such cases also, it could not be held that the court is powerless to condone the delay after due notice to other side with opportunity of hearing. If a contra view is taken, the intention of the legislature to effectuate financial dealings, by issuing cheques instead of solid cash, with alarm of punitive action on dishonour of the cheques, will be failed. Therefore, the orders impugned ``` CRL.MC NO.1316 OF 2021 ``` ``` 12 ``` do not require any interference. Accordingly, this petition stands dismissed. **Sd/-** # **A. BADHARUDEEN JUDGE** nkr ``` CRL.MC NO.1316 OF 2021 ``` ``` 13 ``` ## **`APPENDIX OF CRL.MC 1316/2021`** ``` PETITIONER ANNEXURES ANNEXURE A1 ``` ``` TRUE PHOTOSTAT COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-11, KOTTAYAM NUMBERED AS S.T.NO 92 OF 2014 TRUE PHOTOSTAT COPY OF THE AFFIDAVIT AND THE PETITION CMP NO 3165 OF 2015 FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE-111, KOTTAYAM DATED 9.9.2015 ``` ## **`ANNEXURE A2`** ``` ANNEXURE A3CERTIFIED COPY OF THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE-1111, KOTTAYAM IN CMP NO 3165 OF 2015 DATED 21.6.2019 ``` ``` ANNEXURE A4CERTIFIED COPY OF THE ORDER OF THE ADDITIONAL SESSIONS JUDGE-IV KOTTAYAM DATED 5.1.2021 ```