Kiran v. Sivanandan and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 4[TH] DAY OF JANUARY 2024 / 14TH POUSHA, 1945 OP(CRL.) NO. 997 OF 2023 AGAINST THE ORDER/JUDGMENT ST 256/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS II, KODUNGALLUR ``` ## **`PETITIONER/S:`** ``` KIRAN AGED 28 YEARS S/O. PALLATH PRAKASAN, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK, (MATHILAKAM POLICE STATION) THRISSUR DISTRICT., PIN - 680664 BY ADVS. SINDHU SANTHALINGAM A.D.SHAJAN ``` ## **`RESPONDENT/S:`** ``` 1SIVANANDAN AGED 60 YEARS S/O. PADAPARAMBATH VELAYUDHAN, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK, (MATHILAKAM POLICE STATION) THRISSUR DISTRICT, PIN - 680664 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADVS. Shaju purushothaman M K.S.RAJESH(K/503/1998) R2 BY G SUDHEER,PP ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(Crl) No.997 of 2023 ..2.. ## **K. BABU, J** **------------------------------------------------O.P.(Crl) No.997 of 2023 ------------------------------------------------Dated this the 4[th] day of January, 2024** ## **JUDGMENT** Petitioner, the accused in ST No.256 of 2017 on the file of the Judicial First Class Magistrate’s Court-II, Kodungalloor challenges the order dated 01.11.2023 in CMP No.289/2023, a petition filed under Section 73 of the Indian Evidence Act. Respondent No.1 filed a complaint alleging offence under Section 138 of the Negotiable Instruments Act against the petitioner before the Trial Court. The Court took cognizance of the offence. The petitioner appeared on summons. The petitioner pleaded not guilty to the particulars of offences read over to him. The Court proceeded with the trial. The complainant was examined as PW1. The complainant gave evidence on 06.09.2019 and was subjected to lengthy cross- O.P.(Crl) No.997 of 2023 ..3.. examination by the learned counsel for the petitioner/accused. The trial continued for years. The accused gave evidence under Section 315 of the Cr.P.C.. At the time of examination on 06.05.2023, the petitioner has stated that the complainant was his employee and had worked as Manager of his firm for 3½ years. He further gave evidence that he had kept signed cheques in his firm and later he came to know that the cheques were missing. 2. After giving evidence under Section 315, the petitioner/accused filed an application under Section 73 of the Indian Evidence Act seeking to send the cheque in question to the Forensic Science Laboratory for examination. The trial Court rejected the application and after hearing both sides, reserved the case for judgment. 3. The order rejecting the application under Section 73 of the Evidence Act is under challenge in this O.P.(Crl) No.997 of 2023 **==> picture [20 x 9] intentionally omitted <==** Original Petition filed under Article 226 of the Constitution of India. 4. Heard Smt. Sindhu Santhalingam, the learned Counsel for the petitioner and Sri. Shaju Purushothaman, the learned counsel for respondent No.1. 5. The learned counsel for the petitioner submitted that examination of the disputed cheques by the Forensic Laboratory would reveal the fact that the cheque was not drawn and issued by the petitioner. The learned counsel would further contend that the delay in making an application under Section 73 of the Indian Evidence Act occurred only due to the fact that the accused remained in judicial custody in some other cases. The learned counsel argued that the grounds relied on by the Trial Court in rejecting the application are not sustainable. The learned counsel for the petitioner relied on _**Sri Periyaswamy M. v. State of Karnataka**_ O.P.(Crl) No.997 of 2023 **==> picture [20 x 9] intentionally omitted <==** (Crl.L.P.No.6288 of 2022 of Karnataka High Court) in support of her contentions. 6. Per contra, the learned counsel for respondent No.1 submitted that the Original Petition is liable to be rejected on the ground that it is barred under Order XXIII Rule 1 of the CPC for the reason that the petitioner had earlier filed O.P.(Crl) No.958 of 2023 on the same subject matter and seeking the same reliefs which was withdrawn without the seeking the liberty to institute a fresh petition. The learned counsel relied on _**Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and Others**_ [(1987) 1 SCC 5] in support of his contentions. The learned counsel for respondent No.1 also contended that even on merits, the Original Petition lacks merits as the attempt of the petitioner was only to delay the trial. The trial Court has considered the entire materials in that perspective and O.P.(Crl) No.997 of 2023 **==> picture [20 x 9] intentionally omitted <==** was satisfied that the petitioner was attempting to protract the trial. 7. The case of respondent No.1/the complainant is that the petitioner/accused issued the cheque drawn on Syndicate Bank, Irinjalakkuda Branch in favour of respondent No.1 for Rs.6,00,000/-. Respondent No.1/complainant had issued statutory notice under the NI Act which the accused admittedly received. No reply was caused to be issued to the statutory notice. The complainant was examined as PW1 on 06.09.2019. The learned counsel for the petitioner cross-examined the complainant. The trial Court noted that the petitioner/ accused has not raised a case that he was an employee of the accused and that the complainant has fraudulently obtained cheque from the firm owned by the petitioner/accused while examining PW1. The trial Court further noted that while cross-examining PW1, the petitioner/accused has not raised a case that the cheque O.P.(Crl) No.997 of 2023 **==> picture [20 x 9] intentionally omitted <==** was someway stolen by the complainant and it was after a long lapse of almost four years while giving evidence under Section 313 Cr.P.C., he projected the defence that the cheque was stolen by the complainant from his institution. The trial Court further noted that the accused had sufficient opportunity to lead evidence in support of his contentions but failed to do so and at the fag end of the trial, as a delaying tactics, the petitioner filed application under Section 73 of the Evidence Act. It is pertinent to note that the petitioner/accused had no case that the signature in the cheque was not put by him and moreover the defence now projected by the petitioner was never raised during the trial that lasted for many years until he entered the box invoking provisions of Section 315 Cr.P.C.. In _**Kalyani Bhaskar v. M.S.Sampooranam**_ [2007(2) SCC 258], the Supreme Court held that adducing evidence in support of the defence is a valuable right and denial of that right would O.P.(Crl) No.997 of 2023 **==> picture [20 x 9] intentionally omitted <==** mean denial of a fair trial. In that case, the Apex Court allowed the application filed by the accused for sending the cheque for opinion of the handwriting expert holding that the Magistrate should have granted such a request unless he thinks that the object of the accused is vexation or delaying the criminal proceedings. _**Kalyani Bhaskar**_ is an authority for the proposition that if the intention of the accused is to protract the proceedings, the request for sending the cheque for expert opinion can be rejected. In _**Nagappa v. Muralidhar**_ [AIR 2008 SC 2010], the Apex Court considered the prayer made by the accused for sending the cheque for expert opinion. In _**Nagappa,**_ the Supreme Court held that the Court being the master of the proceedings must determine as to whether the application filed by the petitioner is bonafide or not or whether they intend to bring on record a relevant material. The Apex Court further held that there cannot be any doubt whatsoever that the accused should not be O.P.(Crl) No.997 of 2023 ..9.. allowed to unnecessarily protract the trial. In _**Francis v. Pradeep**_ [2004 (2) KLT 1080], this Court held thus:- “The easiest way to protract proceedings under Section 138 of the N.I. Act and thus stultify the spirit and object of the provisions of Section 138 of the N.I. Act is to request that the cheque be sent to the expert. The soul of the provision will be lost if there is no expeditious enforcement. On account of pressure of work at the Forensic Science Laboratory, it is common knowledge that the expert will not be able to give the report within a period of three to four years. Convenient protraction can be achieved by requesting that the cheque be forwarded to the expert for examination. It is for the Trial Court to alertly consider the acceptability of such request and ensure that the cheque is forwarded to the expert only if satisfactory reasons are available”. (emphasis supplied). 8. It is important to note that the trial Court has not entertained any doubt about the authenticity of the signature shown in the cheque in question. Even the accused, till the fag end, did not raise a question on the O.P.(Crl) No.997 of 2023 **==> picture [26 x 9] intentionally omitted <==** authenticity of the signature in the cheque. The defence raised by the accused indicates that the signature in the cheque was put by him, but it was allegedly stolen by the complainant. The law is trite that any and every request to forward the cheque to the expert need not be blankly and meekly accepted by the trial Court. The Court has to be satisfied that the request is a _bona fide_ having regard to the facts and circumstances of the case. 9. In the present case, the trial Court has gone into the pleadings of the complainant, the defence set up by the accused while cross examining the complainant and the point of time at which the accused projected the defence that the cheque was stolen from his office. The trial Court has satisfied that the request made by the accused was not _bona fide_ after considering all these circumstances. 10. Yet another aspect that requires consideration is that the petitioner had earlier filed Original Petition O.P.(Crl) No.997 of 2023 **==> picture [26 x 9] intentionally omitted <==** No.958/2023 seeking the relief sought for in this petition. Copies of the Original petition and judgment passed by the Court therein are made available for my perusal. The petitioner had sought the reliefs sought for in the present Original Petition in O.P.No.958/2023. The judgment dated 19.12.2023 passed by this Court would show that the petition was dismissed as withdrawn accepting the request of the counsel for the petitioner. As per Order XXIII Rule 1 of the Code of Civil Procedure, the plaintiff may institute a fresh suit in respect of the subject matter if he is granted permission to withdraw his claim with liberty to institute a fresh suit. Sub rule 4 of Order XXIII Rule 1 says that where the plaintiff abandons any suit or part of the claim he shall be precluded from instituting a fresh suit in respect of the subject matter or such part of the claim. In _**Sarguja Transport Service v. State Transport Appellate Tribunal, M.P.Gwalior and Others**_ (Supra), the Supreme Court considered a similar O.P.(Crl) No.997 of 2023 ..12.. question. In _**Sarguja Transport Service**_ , the Supreme Court held that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petitions also, on the ground of public policy. The Supreme Court observed that it would also discourage the litigant from indulging in bench-hunting tactics. The Supreme Court held that while the withdrawal of a Writ Petition filed in a High Court without permission to file a fresh writ petition, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the Writ Petition when he withdraws it without such permission. Admittedly in the instant case, the petitioner had withdrawn O.P.No.958 of 2023 without liberty to institute a fresh Writ Petition on the same cause of action. On this ground also, the Original Petition fails. O.P.(Crl) No.997 of 2023 **==> picture [26 x 9] intentionally omitted <==** 11. The decision relied on by the learned Counsel for the petitioner in _**Sri Periyaswamy M**_ (Supra) is of no assistance as the decision deals with the application of Section 311 Cr.P.C. Resulantly the Original Petition stands dismissed. Sd/- **K.BABU, JUDGE** kkj O.P.(Crl) No.997 of 2023 ..14.. ## **`A PPENDIX OF OP(CRL.) 997/2023`** ## `PETITIONER EXHIBITS` ``` Exhibit P1A TRUE COPY OF THE COMPLAINT IN S T NO. 256/2017 FILED UNDER SECTION 138 AND 142 OF THE NEGOTIABLE INSTRUMENT ACT BY THE 1ST RESPONDENT BEFORE THE JFCM, KODUNGALLUR Exhibit P2A TRUE COPY OF THE AFFIDAVIT TOGETHER WITH PETITION IN CMP NO. 289/2023 IN ST NO. 256/2017 FILED BY THE ADVOCATE JOSEPH THIYOPHIN (COUNSEL FOR THE ACCUSED) BEFORE THE JFCM, KODUNGALLUR ON 27/10/2023 UNDER SECTION 73 OF THE INDIAN EVIDENCE ACT BY THE PETITIONER FOR COMPARISON OF SIGNATURE. Exhibit P3A TRUE COPY OF THE ORDER DATED 1/11/2023 IN CMP 289/2023 IN ST NO. 256/2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR II . Exhibit P4A TRUE COPY OF THE PETITION IN CMP NO. 288/2023 IN ST NO. 256/2017 DTD. 27/10/2023 FILED BY THE FILED BY THE ADVOCATE JOSEPH THIYOPHIN (COUNSEL FOR THE ACCUSED) BEFORE THE JFCM I KODUNGALLUR II . Exhibit P5A TRUE COPY OF THE ORDER DATED 1/11/2023 IN CMP 288/2023 IN ST NO. 256/2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLUR II ```