George P. Devasya v. S. Jayakumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 21ST DAY OF MAY 2020 / 31ST VAISAKHA, 1942** ## **Crl.MC.No.987 OF 2018** **AGAINST ORDER DATED 24.1.2018 IN C.M.P.NO.6714/2017 IN C.C.NO.1954/2015 ON THE FILE OF TEMPORARY SPECIAL COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS (FOR TRIAL OF CASES U/S.138 NI ACT), THIRUVANANTHAPURAM** ## **PETITIONER:PETITIONER/ACCUSED:** **GEORGE P. DEVASYA S/O. DEVASYA, VAZHOOR HOUSE, CHIRAKKULAM, CRRA52, VANCHIYOOR P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.R.GOPAN** ## **RESPONDENTS:COUNTER PETITIONER & STATE/COMPLAINANT & STATE:** **1 S. JAYAKUMAR S/O. SUNDHARESAN, T.C 30/1560, OTTALI HOUSE, CHAYAKKUDI LANE, PETTAH P.O, THIRUVANANTHAPURAM 695 023. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENAKULAM - 682 031.** **R1 BY ADV. SRI.BIJU BALAKRISHNAN R2 BY ADV.E.C.BINEESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21-05-2020, THE COURT ON 21-05-2020 PASSED THE FOLLOWING:** ## **Crl.M.C.No.987 of 2018** ## **:-2-:** ## **Dated this the 21[st] day of May, 2020** ## **O R D E R** The petitioner, who is the sole accused in C.C.No.1954/2015, being prosecuted for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the NI Act'), challenges the impugned order dated 24.1.2018 in C.M.P.No.6714/2017 passed by the Temporary Special Court of JFCM (for trial of cases under Section 138 of NI Act), Thiruvananthapuram, rejecting his witness schedule citing three witnesses on the defence side. 2. The view taken by the learned Magistrate for rejecting the witness schedule after accepting the objection of the complainant is that the fact in issue sought to be proved through the defence witnesses was finally concluded in a former criminal proceeding in C.C.No.1954/2015 before ## **Crl.M.C.No.987 of 2018** ## **:-3-:** JFCM-II, Thiruvananthapuram, as between same parties and the principle of issue estoppel prevents evidence on the concluded issue being brought on record again for fresh consideration. Two decisions of the Honourable Supreme Court were also relied on in this respect. **==> picture [402 x 10] intentionally omitted <==** petitioner and the learned counsel for the 1[st] respondent, the complainant. **==> picture [402 x 13] intentionally omitted <==** C.C.No.1954/2015 on the allegation that he had drawn and issued a cheque for Rs.11 lakhs in the name of the complainant, but he failed to discharge the liability even after being demanded to clear the payment, following the dishonour of cheque for insufficiency of fund at his credit. 5. The petitioner's defence is that he did not voluntarily issue any cheque to the complainant and ## **Crl.M.C.No.987 of 2018** **:-4-:** as a matter of fact, there was no transaction also between the parties. He had become mentally unsound following 'alcohol dependence syndrome' and was treated by doctors cited as defence witnesses during the relevant period. Taking advantage of his vulnerable condition, the complainant managed to obtain a signed cheque from him and manipulated false entries of date, amount and name of the payee and committed offences punishable under Sections 420, 465, 468 and 506(ii) IPC. Upon his wife's complaint, the 1[st] respondent was later prosecuted before JFCM-II, Thiruvananthapuram, in C.C.No. 3489/2014, in which, the same medical witnesses were cited and examined on the side of the prosecution. 6. According to the petitioner, these persons are essential witnesses to be examined on his side to prove his defence that cheque was obtained under ## **Crl.M.C.No.987 of 2018** ## **:-5-:** circumstances which rendered it legally unenforceable. It was further contended that a cheque alleged to be executed by a drawer unpossessed of necessary contractual capacity, is void and therefore, cannot become subject matter of prosecution under Section 138 of the NI Act. 7. The learned counsel for the petitioner further contended that as a matter of law, every accused has unfettered right to adduce defence evidence of his choice and the court below has by the impugned order, deprived him of such a valuable right for no good reasons. On the other hand, the learned counsel for the 1[st] respondent argued that there is no purpose in allowing the defence witnesses to be examined, since on the basis of oral evidence given by them and recorded in C.C.No.3489/2014, the trial court concluded that the petitioner was not mentally unsound and ## **Crl.M.C.No.987 of 2018** ## **:-6-:** accordingly acquitted him of all charges. The order of acquittal was confirmed in Crl.A.No.18/2016 though it was challenged by the petitioner's wife in the appeal. 8. The specific contention of the 1[st] respondent is that since there is definite finding in the judgments of trial court as well as appellate court that petitioner does not suffer from any mental incapacity so as to render the transaction and alleged issue of cheque during relevant period void under law, it is futile as well as illegal to allow defence witnesses to be examined since the learned Magistrate is precluded by the principle of issue estoppel from adjudging the same issue afresh, ignoring the judgments in vogue. In this respect, he supported himself with two decisions of Honourable Supreme Court reported in **Preetam Singh and another v. State of Punjab** ## **Crl.M.C.No.987 of 2018** ## **:-7-:** **(1956 KHC 423)** and **Manippur Administration, Manippur v. Thothom Veera Singh (1965 KHC 455)** contending for the position that principle of issue estoppel applies in such situations and a criminal court is estopped from trying a fact in issue concluded between same parties in a formal criminal proceeding. In short, he sought to sustain the impugned order of the learned Magistrate. 9. After hearing both sides, it has come out that the judgment in Crl.A.No.18/2016 has not become final and conclusive, since it has been challenged in Crl.R.P.No.502/2016 before this Court and it is still pending consideration. That means, the matter in issue as to the alleged unsoundness of mind of the petitioner, is yet to be determined conclusively. The assumption of the court below that the judgments in C.C.No.3489/2014 and Crl.A.No.18/2016 have become final is factually ## **Crl.M.C.No.987 of 2018** ## **:-8-:** wrong and therefore itself, principle of issue estoppel relied on by it cannot apply to the facts of the case. It is well-nigh settled law that doctrine of issue estoppel would apply only in cases where the facts in issue in the formal criminal proceeding are shown to have attained finality. The position in the case on hand is, however, different and therefore I hold that the impugned order rejecting defence witness schedule, on the force of the principle of issue estoppel is legally wrong and is therefore liable to be set aside. 10. The petitioner has every right to examine the defence witnesses cited in the list to establish that he was in such a mental condition on the relevant date that he was incapable of executing the cheque in question voluntarily. I am of the opinion that the complainant is not going to ## **Crl.M.C.No.987 of 2018** ## **:-9-:** be prejudiced by grant of such opportunity to the petitioner since the complainant has sufficient chance to cross-examine the witnesses effectively. 11. The learned counsel for the 1[st] respondent submitted that the petitioner may not be allowed to protract the proceedings and delay the disposal of the case under the guise of availing opportunity of adducing defence evidence. The concern expressed by the learned counsel certainly requires to be addressed. The learned Magistrate, therefore, ought to be directed to complete the defence evidence and dispose of the case within a time frame. Having regard to the facts and circumstances of the case, I am of the opinion that the court below ought to be directed to dispose of the matter finally, within three months. The learned Magistrate will be at liberty to decide the question as to the alleged unsoundness of mind raised by the defence on the ## **Crl.M.C.No.987 of 2018** ## **:-10-:** basis of the over all evidence adduced by the parties in the case independent of the finding arrived at in C.C.3489/2014 in Crl.A. No.18/2016 since it is yet to become final after disposal of Crl.R.P. No.502/2016 pending before this Court. In the result, petition is allowed quashing the impugned order dated 24.01.2018. The learned Magistrate will permit the petitioner to examine the defence witnesses cited in the list and dispose of C.C. No. 1954/2015 within a period of three months from the date receipt of a copy of this order in the light of the observations made above. All pending interlocutory applications are closed. Sd/- ## **T.V.ANILKUMAR JUDGE** ami/DST ## **Crl.M.C.No.987 of 2018** ## **:-11-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **TRUE COPY OF COMPLAINT IN CC NO.1954/2015 FILED BY 1ST RESPONDENT DATED 8.3.2007.** **ANNEXURE B** **TRUE COPY OF APPLICATION DATED 4.12.2017 FILED BY PETITIONER IN CC NO.1954/15.** **ANNEXURE C** **TRUE COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT DATED NIL IN CC NO.1954/15.** **ANNEXURE D TRUE COPY OF JUDGMENT IN CC NO.3489/14 DATED 18.12.2015 OF THE JUDICIAL MAGISTRATE OF THE 1ST CLASS -2, THIRUVANANTHAPURAM.** **ANNEXURE E TRUE COPY OF JUDGMENT IN CRL.A NO.18/2016 DATED 6.2.17 OF THE ADDL. SESSIONS COURT - II, THIRUVANANTHAPURAM** **ANNEXURE F TRUE COPY OF THE ORDER DATED 24.1.2018 IN CMP NO.6714/17 IN CC 1954/15 OF THE TEMPORARY SPECIAL COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS FOR THE TRIAL OF CASES UNDER SECTION 138 OF N.I ACT, THIRUVANANTHAPURAM.**