G. Somarajan v. M/s Pamba Engg. & Construction Co. Pvt. Ltd. & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 CRL.L.P. NO. 18 OF 2021 ``` ``` AGAINST THE ORDER DATED 26.06.2018 IN STC NO.153/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KANNUR, ``` ## **`PETITIONER/COMPLAINANT:`** ``` G.SOMARAJAN, “ATHIRA”, KADAMBUR, P.O.EDAKKAD, KANNUR-670 663. ``` ``` BY ADV. SRI.GIGIMON ISSAC ``` ## **`RESPONDENTS/ACCUSED:`** ``` 1M/S.PAMBA ENGG. AND CONSTRUCTION CO. PVT. LTD., THROUGH ITS MANAGING DIRECTOR MR.A.T.SAINUDHEEN, PRESENT REGD. OFFICE, C-45, SECTOR-2, NOIDA-201 301. 2MR. A.T.SAINUDHEEN, MANAGING DIRECTOR, M/S. PAMBA ENGG AND CONSTRUCTION CO. PVT. LTD., C-45, SECTOR-2 NOIDA-201 301. 3MR. GOPINATHAN, DIRECTOR, M/S PAMBA ENGG AND CONSTRUCTION CO. PVT.LTD, C-45, SECTOR-2, NOIDA-201 301. 4STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADVS. R1 & R2 BY SRI.P.VIJAYA BHANU (SR.) SMT.P.A.REZIYA SRI.M.REVIKRISHNAN SRI.P.M.RAFIQ R3 BY SMT.P.A.REZIYA R4 BY SRI M.P.PRASANTH, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL LEAVE PETITION HAVING COME UP FOR ADMISSION ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.L.P.No.18 of 2021 ``` ``` 2 ``` ## **`ORDER`** ## **`Dated this the 28[th] day of October, 2021`** This leave petition is filed seeking leave from this Court for filing appeal challenging an order passed by Judicial First Class Magistrate Court IV, Kannur (for short ‘the court below’) in STC.No.153/2017. The court below has acquitted the accused under Section 256(1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’). 2. STC.No.153/2017 was a prosecution launched under Section 142 of the Negotiable Instruments Act, 1881 (for short ‘the NI Act’) alleging commission of an offence punishable under Section 138 NI Act. The case of the complainant was that the accused owed a sum of Rs.26,00,00,000/- to him and towards part payment, a postdated cheque for Rs.5,00,00,000/- was issued from the account of A1 company, executed by A3 and handed over to the complainant by A2. On presentation of the cheque in bank for encashment, it was bounced for the reason, ‘payment stopped by the drawer’. Statutory notice was issued ``` Crl.L.P.No.18 of 2021 ``` ``` 3 ``` under the proviso to Sub Section (b) of Section 138 NI Act but accused did not pay the money. Complaint was launched before the Metropolitan Magistrate, Patiala House, New Delhi. The petitioner approached the Apex Court for transfer of the same to Kannur. The Apex Court allowed the application on 06.02.2017. The Chief Judicial Magistrate, Thalassery which seized of the complaint by order dated 30.06.2017 made over the case to Judicial First Class Magistrate Court IV, Kannur. Both parties were directed to appear before the court on 26.08.2017. The complainant was present on that day, but the accused were absent. Therefore the case was adjourned to 04.10.2017. On 04.10.2017, all accused were present and particulars of the offence were read over to the accused. On that day also the complainant was absent. Therefore, the case was adjourned for evidence of the complainant to 08.11.2017. Due to some prostrate related ailments the petitioner did not appear before the court on that day. Thereafter, though several postings were given, the petitioner in view of his ailments and treatment procedures followed thereby could not appear and adduce evidence to substantiate his averments in the ``` Crl.L.P.No.18 of 2021 ``` ``` 4 ``` complaint. The court was constrained to adjourn the case to 26.06.2018 for adducing evidence. That day also the complainant was absent and evidence was not adduced. His counsel was also absent but an application for condonation of absence was filed through another counsel, without stating sufficient reasons. A bald statement that the complainant was not in a position to attend the court alone was made in the petition. For want of a cogent reason, that petition was dismissed by the court. Having been convinced of the invigilance of the complainant in prosecuting the case, the complaint was also dismissed and the accused was acquitted under Section 256 (1) Cr.P.C. 3. The above circumstances led the complainant to approach this Court filing the petition on hand seeking to obtain leave to challenge the order of acquittal of the accused, in appeal. 4. It has been contended by Sri.Gigimon Issac, the learned counsel for the petitioner that the complainant was restrained by his ailments and treatment from attending the ``` Crl.L.P.No.18 of 2021 ``` ``` 5 ``` court on various posting dates. Alongwith the leave petition he has produced Annexure A1 which is a certificate dated 07.05.2018 which shows that the complainant had undergone Flexible scopy + Urethral dilatation on 23.04.2018 and was advised to take rest for one month and to have follow up in Urology OPD. He has also produced Annexure A2 certificate dated 26.9.2018 which shows that post TURP, he had been undergoing treatment at Miart, Metromed Institute of Advanced Urology and Renal Transplant, Calicut from 08.11.2017 to 20.07.2018 and also needs regular follow up in Urology OPD. Annexures A1 and A2 being medical certificates, this Court has directed production of medical documents like discharge summary or case records. The medical documents produced show that the petitioner was suffering from ailments but it is not disclosed from those that the petitioner was bed ridden or was undergoing in-patient treatment all throughout the period. Most of the time, he was on treatment as out patient and there is absolutely no reason for him not to attend the court and adduce evidence when called upon to do so by the court below. ``` Crl.L.P.No.18 of 2021 ``` ``` 6 ``` 5. The learned counsel for the respondents vehemently opposed grant of leave to file appeal. According to him, the complaint was originally filed before Court of Metropolitan Magistrate-02, Patiala House, New Delhi and during pendency of that the complainant himself approached the Apex Court seeking for a transfer of the case therefrom. Accordingly an order was passed by the Apex Court, true copy of which is produced by the respondents and the portion specifically relied on by her is extracted hereunder: “2. In view of the amendment to Section 142 of the Negotiable Instruments Act, 1881, it is clear that the jurisdiction to try the offence in question would be vested in the learned trial court in Kerala and not in the Court of Metropolitan Magistrate-02, Patiala House, New Delhi. Accordingly, C.C No.8366 of 2011, titled as “G.Somarajan Vs. M/s Pamba Engineering & Construction Co.(P) Ltd. & Others” pending in the Court of Metropolitan Magistrate-02, Patiala House, New Delhi is ordered to be transferred to the court of Metropolitan Magistrate, Kannur, Kerala. We also make it clear that we are permitting the parties to address the learned trial court Kannur Kerala on all issues including the issue with regard to the authenticity of the cheque(s) and place before the learned trial Court the report(s) of the CBI and such other body(ies) that has/have been submitted to this Court pursuant to the orders passed from time to time. The Court of the Metropolitan Magistrate-02, Patiala House, New Delhi shall send the case record to the transferee Court promptly and without any delay. ``` Crl.L.P.No.18 of 2021 ``` ``` 7 ``` 3. The transfer petition is accordingly allowed. 4. After transfer of the petition, the transferee Court is directed to make all endeavour for early decision in the case without unnecessary adjournments.” (Emphasis supplied) 6. While ordering transfer of case to Court of Metropolitan Magistrate, Kannur, Kerala, the Apex court has issued a further direction to that court as emphasised above. The learned counsel for the respondents has also produced Annexure R1(d) which is nothing but the extract of the proceedings of the case wherein the Metropolitan Magistrate-02, New Delhi dated 25.08.2012 who was seized of the prosecution ## filed by the petitioner observed as follows: “A perusal of the record reveals that after tendering the evidence, the complainant has not appeared since the last five dates. The trial cannot proceed in the absence of the complainant as it is only with his presence that crossexamination can be conducted. Further the date of today was given with the consent of both counsels but the complainant witness is still not present. However, in the interest of justice, exemption is allowed subject to cost of Rs.5,000/- to be paid as fine.” Similarly it is disclosed from Annexure R1(f) that none represented the complainant before the court on ## 20.05.2015. It is revealed from Annexures R1(g) and R1(h) ``` Crl.L.P.No.18 of 2021 ``` ``` 8 ``` that the conduct of the complainant was the same in the proceedings followed thereby. By order passed by the Apex Court in the transfer petition the case was transferred with a direction to expedite disposal and was received on its’ file by the transferee court. Even thereafter, the complainant failed to co-operate with the proceedings of the transferee court. 7. It is submitted by the learned counsel for the petitioner that though the complainant was absent he was represented by his counsel all throughout the proceedings and applications were also filed seeking to condone his absence. Filing of applications for condonation of delay repeatedly would not help the disposal of the case on merits. This is a case wherein postings were granted for adducing evidence, by the court severally, but the complainant was absent on all those dates. Eventhough medical records are produced, those would not disclose that the complainant was totally bed ridden and therefore incapacitated to travel and thus prevented from appearing before the court to co-operate with the proceedings of the case. ``` Crl.L.P.No.18 of 2021 ``` ``` 9 ``` 8. This Court has also held in Cauvery Build Tech Pvt. Ltd. ## v. Aneesh James & Anr. [2019 (3) KLJ 928] as follows: “3. xxx The order reveals absence of the counsel of the complainant also. But the court must be vigilant while denying the valuable right of a person to prosecute the case that the absence of the complainant or his counsel may be due to a genuine reason. For that, providing with a second opportunity to appear, explain and contest is important. In the case on hand though the complainant's presence was not warranted, the court has observed that also as a ground while declining him an opportunity to prosecute his case. The plight of the party in the context must also be born in mind while doing so. The court has not applied it’s mind to the previous proceedings to see whether the complainant is a person vigilant in prosecuting his case. Whether character of the complainant is contumacious could only be discerned from the context of the case on previous occasions. No reference is there in the order about previous conduct of the complainant.” As directed in the above extract, for a single absence of the complainant or his counsel, the court shall not dismiss the complaint and acquit the accused. The court must look into the proceedings immediately preceding the fateful one to find out whether those also spell out any conduct of willful latches or negligence or invigilance of the complainant. In the case on hand by abstaining from appearing and adducing evidence on ``` Crl.L.P.No.18 of 2021 ``` ``` 10 ``` several occasions, the complainant has proved as a contumacious litigant and therefore, the court below cannot be found fault with in issuing an order of acquittal in favour of the accused. The court below rightly invoked jurisdiction under Section 256 (1) Cr.P.C and passed an order acquitting the accused. 9. Knowingly of the direction issued by the Apex Court to the transferee court in an order passed in the petition filed by him to take all earnest efforts to dispose of the case immediately, he failed to co-operate with the proceedings of the case. In the above circumstances, leave is only to be declined to the petitioner. Accordingly the leave petition is dismissed. ``` sd/- ``` ``` MARY JOSEPH JUDGE ``` ``` NAB ``` ``` Crl.L.P.No.18 of 2021 ``` ``` 11 ``` ## **`A PPENDIX OF CRL.L.P. 18/2021`** ``` PETITIONER’S ANNEXURES: ANNEXURE A1TRUE COPY OF THE CERTIFICATE OF DR. HARI GOVIND POTHIYEDATH, MS MCH CHIEF CONSULTANT, UROLOGIST AT MIART HOSPITAL DATED 7.5.2018 ANNEXURE A2TRUE COPY OF THE CERTIFICATE OF DR. HARI GOVIND POTHIYEDATH, MS MCH CHIEF CONSULTANT, UROLOGIST AT MIART HOSPITAL DATED 26.9.2018 ANNEXURE ATRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR. HARI GOVIND POTHIYEDATH, MS MCH CHIEF CONSULTANT, UROLOGIST AT MIART HOSPITAL , KOZHIKODE DATED 26.9.2018 RESPONDENTS’ ANNEXURE S: ANNEXURE R1ATRUE COPY OF THE PROCEEDING SHEET DATED 19-11-2011. ANNEXURE R1BTRUE COPY OF THE PROCEEDING SHEET DATED 21-11-2011. ANNEXURE R1CTRUE COPY OF THE PROCEEDING SHEET DATED 07-08-2012. ANNEXURE R1DTRUE COPY OF THE PROCEEDING SHEET DATED 25-08-2012. ANNEXURE R1ETRUE COPY OF THE PROCEEDING SHEET DATED 30-01-2015. ANNEXURE R1FTRUE COPY OF THE PROCEEDING SHEET DATED 20-05-2015. ANNEXURE R1GTRUE COPY OF THE PROCEEDING SHEET DATED 13-01-2016. ANNEXURE R1HTRUE COPY OF THE PROCEEDING SHEET DATED 11-05-2016. ANNEXURE R1ITRUE COPY OF THE PROCEEDING SHEET DATED 14-03-2017. ANNEXURE R1JTRUE COPYOF THE PROCEEDING SHEET DATED 15-03-2017. ``` ``` / ```