K. M. Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **Crl.MC.No.8008 OF 2019(A)** **AGAINST THE ORDERIN CRRP 53/2017 DATED 17-07-2019 OF ADDITIONAL SESSIONS COURT - IV, KOTTAYAM** **AGAINST THE ORDER DATED 03.11.2017 IN CMP NO.3227/2017 IN ST 1472/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANOOR** ## **PETITIONER/ACCUSED:** **K.M.THOMAS, AGED 53 YEARS S/O.K.M. MANI, KARISSERIL HOUSE, ELLUMPURAM P O, MUTAM, IDUKKI, PIN-685587.** **BY ADVS. SRI.VAKKOM N.VIJAYAN SMT.V.RENJU** ## **RESPONDENTS/PETITIONER:** **1 K.M.THOMAS, S/O. THOMAS, KURUMULLUTHADATHIL HOUSE, MANAKKARY P O, KOTTAYAM, PIN-686632.** - **2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KCOHI-682031.** ## **SRI C N PRABHAKARAN -SR PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-12-2019, THE COURT ON 16-12-2019 PASSED THE FOLLOWING:** Crl.M.C.No.8008/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.8008 of 2019 --------------------------------------------Dated this the 16[th] day of December, 2019 ## **O R D E R** The petitioner is the accused in the case S.T.No.1472/2016 on the file of the Court of the Judicial First Class Magistrate-I, Ettumanoor. 2. The aforesaid case is based on the complaint filed by the first respondent against the petitioner for committing an offence punishable under Section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as 'the Act'). 3. The complaint was originally filed in the Court of the Judicial First Class Magistrate-III, Kottayam. The learned Magistrate took cognizance of the offence and numbered the case as S.T.No.91/2014. On 21.02.2015, the Judicial First Class Magistrate-III, Kottayam ordered that the complaint shall be returned for presentation before the proper court. This direction Crl.M.C.No.8008/2019 3 was made by the court in the light of the decision of the Supreme Court in **Dashrath Rupsingh Rathod v. State of Maharashtra: AIR 2014 SC 3519** . 4. The first respondent re-presented/re-filed the complaint in the Court of the Judicial First Class Magistrate-I, Ettumanoor on 06.04.2015. As per the direction in **Dashrath** (supra), the complaint should have been re-presented in that court within 30 days of the date 21.02.2015. Obviously, there was delay in re-filing the complaint in the proper court. The first respondent/complainant filed an application for condoning the delay in re-presenting the complaint. The aforesaid application was allowed by the learned Magistrate as per Annexure-A2 order. 5. The petitioner/accused filed Crl.R.P.No.20/2015 in the Court of Session, Kottayam challenging Annexure-A2 order. Learned Sessions Judge, as per Annexure-A3 order, allowed the revision petition on the ground that Annexure-A2 order was passed by the learned Magistrate without disclosing any reasons and remanded the application for condonation of delay for fresh consideration by the learned Magistrate. Learned Magistrate Crl.M.C.No.8008/2019 4 considered the application afresh and passed Annexure-A4 order condoning the delay in re-filing the complaint. 6. The petitioner challenged Annexure-A4 order by filing revision petition before the Court of Session, Kottayam. As per Annexure-A5 order, learned Sessions Judge dismissed that revision petition. The aforesaid order is challenged by the accused in this petition filed under Section 482 Cr.P.C. 7. Heard learned counsel for the petitioner. 8. The two questions that arise for consideration by this Court in this petition are: (1) Whether the learned Magistrate had power to condone the delay in re-presenting/re-filing the complaint before the Court of the Judicial First Class Magistrate-I, Ettumanoor? (2) If so, whether the learned Magistrate was justified in allowing the application filed by the first respondent/complainant for condonation of delay? 9. A Division Bench of this Court, in **Binoy K.Mathew v. Godley Dev John : 2015 (3) KLT 784** , has categorically held that the complainant could invoke the jurisdiction of the court under Section 470 Cr.P.C and also the power of the court under Crl.M.C.No.8008/2019 5 the proviso to Clause (b) of Section 142 of the Act and pray for condonation of delay. It has been held that the question whether the delay is satisfactorily explained and that the delay can be condoned or whether the period spent by the complainant before a wrong court can be excluded, are all matters to be considered by the court and that power can be exercised notwithstanding the non-filing of the complaint within 30 days as directed in **Dashrath** (supra). Therefore, the Magistrate has power to condone the delay in re-presenting the complaint. 10. In the instant case, the complaint should have been filed in the Court of the Judicial First Class Magistrate-I, Ettumanoor, within 30 days from the date 21.02.2015. The period of 30 days expired on 23.03.2015. The complaint was re-filed only on 06.04.2015. There was a delay of 13 days in re-filing the complaint. 11. The complainant had stated in the affidavit filed in support of the application for condonation of delay that his wife had become a paraplegic after a surgery and that he was in Delhi in connection with personal matters of his wife and that he Crl.M.C.No.8008/2019 6 returned from Delhi on 04.03.2015. It is true that the complainant has not shown any specific reason for the delay of 13 days in re-filing the complaint. However, the learned Magistrate has taken a liberal view and condoned the delay of 13 days in re-filing the complaint. The revisional court has not chosen to interfere with the discretion exercised by the learned Magistrate in this regard. I find no exceptional circumstances to interfere with the orders passed by the courts below in exercise of the power of this Court under Section 482 Cr.P.C. 12. In this connection it is to be noted that, Section 142A was inserted in the Act by Act No.26 of 2015, with retrospective effect from 15.06.2015. The Apex Court in **Bridge Stone India (P) Ltd. v. Inderpal Singh: (2016) 2 SCC 75** , had occasion to consider the effect of the aforesaid provision. The Apex Court has taken the view that the provisions contained Section 142A of the Act would have the effect of nullifying the judgment in **Dashrath** (supra). 13. In the present petition, no arguments have been advanced on the basis of Section 142A of the Act and the Crl.M.C.No.8008/2019 7 decision of the Apex Court in **Bridge Stone India** (supra). I make it clear that the impact of Section 142A of the Act has not been considered by this Court in the present petition. What is challenged in this petition is the legality of Annexures-A4 and A5 orders passed by the courts below in condoning the delay of 13 days in re-filing the complaint. It is the only question considered and decided by this Court in this petition. Consequently, the petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.8008/2019 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE DELAY PETITION FILED BY THE 1ST RESPONDENT CMP NO.3227/2015 IN ST 91/2014, 2015 BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ETTUMANOOR.** ## **ANNEXURE A2** **TRUE COPY OF THE ORDER PASSED BY THE JUDICIAL MAGISTRATE OF FIRST CLASS-1, ETTUMANOOR IN CMP NO.3227 IN ST NO.91/2014 DATED 9.7.2015.** **ANNEXURE A3 TRUE COPY OF THE ORDER PASSED BY THE ADDL.SESSIONS JUDGE-IV, KOTTAYAM IN CRL.R.P. NO.20/2015 DATED 18.7.2017** **ANNEXURE A4 TRUE COPY OF THE ORDER DATED 3.11.2017 OF THE JUDICIAL 1ST CLASS MAGISTRATE-1, ETTUMANOOR IN CRL.M.P. NO.3237/2017 IN ST.NO.1472/2016.** **ANNEXURE A5** **CERTIFIED COPY OF THE ORDER DATED 17.7.2019 IN CRIMINAL RP NO.53/2017 OF THE ADDL.SESSIONS JUDGE-IV, KOTTAYAM.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE