KMLM CHITS INDIA LTD. v. Siji Bijeesh and The State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944 ``` ``` CRL.MC NO. 7571 OF 2022 ``` ``` ST.NO.4592/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`MUVATTUPUZHA`** ## **`PETITIONER/COMPLAINANT:`** ``` KMLM CHITS INDIA LTD., ERNAKULAM, MUVATTUPUZHA BUILDING, VELLOORKUNNAM, MUVATTUPUZHA REP. BY ITS POWER OF ATTORNEY HOLDER & MANAGER MR. JIBIN VARGHESE, S/O. VARKEY V.M., AGED 41 YEARS, VAZHAKKALAYIL HOUSE, KAKKAD P.O., PIRAVOM, ERNAKULAM PIN - 686664 BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW ANJANA S. ARCHANA RAMANAN ``` ## **`RESPONDENTS/ACCUSED & STATE:-`** ``` 1SIJI BIJEESH AGED 46 YEARS NEDUMPURAM (PARAPPANATTU) HOUSE, PUZHAKKAD KARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK, NOW RESIDING AT PERFECT APHOLSTERY WORKS, VAZHAPPILLY, MARKET P.O, MUVATTUPUZHA PIN - 686673 2THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN - 682031 R1 BY ADVS. SHAJI CHIRAYATH JIJI M. VARKEY(J-650) M.K.SAFEELA BEEVI(S-1575) SAVITHA GANAPATHIYATAN(K/1604/1999) M.M.SHAJAHAN(K/1204-E/2010) R2 BY PP-SRI.G.SUDHEER ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC NO. 7571 OF 2022 2 ## CR ## ORDER This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter) and thereafter, the first prayer therein (Relief No.a) got amended. Accordingly, at present, the petitioner seeks the following reliefs: - a. Quash Annexure F Order of the JFCM-I, Muvattupuzha in ST No. 4592/2014 and summons issued to the witnesses named in Annexure D witness schedule; - b. Pass such other Orders and to issue such other directions which are deemed expedient considering the facts and circumstances of the case. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first respondent. 3. The petitioner herein impugns Annexure F order, whereby, the learned Magistrate ordered to issue summons to the witness No.1 in Annexure D witness schedule. It is submitted by the learned counsel for the petitioner that, based on Annexure F order, the Magistrate court issued summons to all four witnesses and the original summons so issued also have been placed along with this petition, with a direction to appear before the court on 30.6.2022. CRL.MC NO. 7571 OF 2022 3 4. It is argued by the learned counsel for the petitioner that the cheque in question, where from the prosecution emanates in this matter, is one issued by the accused, who is the wife of Sri.Bijeesh, who availed chitty prize money from the complainant company during 2014, on executing agreement, wherein, the present accused is the guarantor. The agreement was dated 15.1.2013. According to the learned counsel for the petitioner, since the question involved in this prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, is pertaining to proof of transaction, which led to execution of the cheque, the examination of witness Nos.1 to 4 shown in witness schedule, produced as Annexure D, is not at all necessary and the intention of the first respondent is to drag the matter as well as to harass the complainant, by calling unwanted witnesses with direction to produce irrelevant documents. The learned counsel pointed out that, money lending licence, certificate of registration and original registration certificate are the documents sought to be let in evidence, by examining witness No.1. He also submitted that, as regards to witness Nos.2, 3 and 4 are concerned, they are Chartered Accountant, Company Secretary as well as Advocate and Notary, who had attested certain documents. Therefore, their examination on the premise to disprove the case of the complainant is not at all necessary. CRL.MC NO. 7571 OF 2022 4 5. In this connection, the learned counsel for the petitioner placed reliance of Section 254(2) of the Cr.P.C. to contend that the power of a court under Section 254(2) to issue summons to any witness directing him to attend or to produce any document or other thing is confined in the matter of calling and summoning witnesses and documents which are relevant to decide the matter in controversy and the said provision does not authorize the Magistrate to summon and produce unwanted documents which are irrelevant. The learned counsel also placed decision of this Court reported in Muthulekshmi Amma v. Prabhakaran P.K. and Another [2008 (3) KHC 149] . In this decision, this Court held that Magistrate has to ensure that the power to issue summons not to be invoked to cause harassment to the complainant or the witnesses sought to be summoned, though the court is having power to examine the witnesses, if the court satisfies that examination of the said witness is relevant and necessary for setting up of the defence of the accused. Similarly, another decision of the High Court of Bombay reported in Prabhakar Xembhu v. Surendra V.Pai and Another [2006 KHC 1385] also has been placed to buttress the said ratio. Therefore, the learned counsel for the petitioner argued that issuance of summons to witness Nos.1 to 4 are illegal and against the spirit of Section 254(2) of the Cr.P.C. 6. Whereas, it is submitted by the learned counsel for the first CRL.MC NO. 7571 OF 2022 5 respondent that, witness Nos.1 to 4 were sought to be summoned to prove the case of the accused that, as per Ext.D2, the name of the accused is not shown as a debtor or creditor to show any liability to the accused to the company, in any manner. He also submitted that examination of the other witnesses were also necessary to prove the said point. 7. In this matter, already witness No.1 was examined in chief and cross examined in part. Therefore, the remaining part is to complete the cross examination. In view of the above factual situation, I am not inclined to interfere with the examination of the first witness in any manner and the same shall continue. 8. As far as witness Nos.2 to 4 are concerned, though as per Annexure F, the court ordered to issue summons to witness No.1 alone. Annexure G series are 3 summonses received by the witnesses in Annexure D witness schedule. It is submitted by the learned counsel for the first respondent that all the witnesses, on receipt of notice, applied for time for appearance also. 9. Coming to Section 254(2) of the Cr.P.C., it has been provided as under: ## 254. Procedure when not convicted. CRL.MC NO. 7571 OF 2022 6 (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in court. 10. Thus, it appears that the power of the Magistrate to call for documents and to summon witnesses could be exercised, if the Magistrate would think it fit to summon them to decide in the matter in controversy. To be more explicit, the Magistrate shall not summon witnesses or cause production of documents unless the examination of the witnesses or production of documents are absolutely necessary to decide the matter in issue, holding that the same is a relevant fact. This is the ratio of the decisions in Muthulekshmi Amma ’s case (supra) and Prabhakar Xembhu ’s case (supra). 11. On a perusal of Annexure D witness schedule, witness No.2, a Chartered Accountant sought to be summoned and the purpose of summoning is CRL.MC NO. 7571 OF 2022 7 stated as ‘to disprove the case of the complainant’. As far as witness No.3 is concerned, a Company Secretary sought to be summoned and the purpose of summoning is stated as ‘to disprove the case of the complainant’. Similarly, witness No.4 was sought to be summoned and the purpose of summoning is stated as ‘for examination and production of the Notary Register pertaining to 2017 and production of the Original Document No.2 in OS No.71 of 2018 on the files of the Munsiff’s Court, Muvattupuzha (Which withdrawn as not pressed on 10[th] April, 2018)’. 12. In this matter, the matter in controversy in between the litigating parties is as to whether there is transaction as alleged and the consequential execution of the cheque in question. The specific case of the petitioner is that the accused issued cheque to discharge the liability of her husband. Be it so, the debtor is the husband of the accused. So, there is no reason to show the guarantor as a debtor in Ext.D2, since the debtor is her husband. Therefore, this contention raised by the learned counsel for the first respondent is of no avail. Here, PWs 1 and 2 examined and the accused let in Ext.D2 to prove that the accused has no liability as per Ext.D2. Insofar as the evidence of witness Nos.2 to 4 are concerned, nothing stated in the witness list suggesting the specific point to be proved so as to invoke power under Section 254(2) of the Cr.P.C. If so, it CRL.MC NO. 7571 OF 2022 8 could be held that the Magistrate ordered summons to witness No.1 and issued summons to witness Nos.2 to 4, even without an order in very casual manner and without application of mind. In fact, nothing substantiated to establish the relevance of the evidence of witness Nos.2 to 4 and documents sought for, though they were sought to be summoned. As such, the same have no direct nexus to the matter in issue and therefore, the learned Magistrate went wrong in summoning them as witnesses and it appears that the summons were issued without the order of the learned Magistrate. The learned Magistrate is directed to look into how summons to witness Nos.2 to 4 also was issued even without a specific order. 13. Accordingly, this Criminal Miscellaneous Case stands allowed in part, with liberty to the first respondent to continue and complete examination of the first witness in Annexure D. Issuance of summons to the other witnesses (2 to 4) in Annexure D, stands set aside. Since the matter is of the year 2014, the learned Magistrate is directed to expedite the trial and complete the same, within a period of two months from the date of receipt of a copy of this judgment and report compliance. Sd/A. BADHARUDEEN JUDGE Bb CRL.MC NO. 7571 OF 2022 9 ## **`APPENDIX OF CRL.MC 7571/2022`** |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE A`|`A TRUE COPY OF THE COMPLAINT FILED BY THE`| ||`PETITIONER AS CMP NO. 915/2014 BEFORE THE`| ||`JFCM COURT-I, MUVATTUPUZHA`| |`ANNEXURE B`|`A TRUE COPY OF THE DEPOSITION OF PW1 IN ST`| ||`4592/2014 OF JFCM COURT- I MUVATTUPUZHA`| |`ANNEXURE C`|`A TRUE COPY OF THE STATEMENT OF THE ACCUSED`| ||`RECORDED UNDER SECTION 313 CR.P.C IN`| ||`S.T.NO.4592/2014 OF JFCM COURT- I`| ||`MUVATTUPUZHA`| |`ANNEXURE D`|`A TRUE COPY OF THE DEFENCE WITNESS SCHEDULE`| ||`FILED BY THE RESPONDENT/ACCUSED IN ST NO.`| ||`4592/2014 OF JFCM COURT-I MUVATTUPUZHA`| |`ANNEXURE E`|`A TRUE COPY OF THE REGISTRATION CERTIFICATE`| ||`ISSUED TO THE PETITIONER UNDER THE JAMMU`| ||`AND KASHMIR SHOPS AND ESTABLISHMENTS ACT,`| ||`1996`| |`ANNEXURE F`|`CERTIFIED COPY OF THE ORDER DATED`| ||`03/06/2022 OF THE JFCM COURT-I,`| ||`MUVATTUPUZHA IN ST NO. 4592/2014`| |`ANNEXURE G`|`ORIGINAL SUMMONS DATED 03/06/2022 ISSUED BY`| ||`THE JFCM COURT-I, MUVATTUPUZHA IN ST NO.`| ||`4892/2014 TO WITNESS NOS.1, 2 AND 4`| |`ANNEXURE H`|`A TRUE COPY OF THE B DIARY IN ST 4592/2014`| ||`OF JFCM COURT- I MUVATTUPUZHA`| |`ANNEXURE I`|`A TRUE COPY OF CHITTY GUARANTEE DEED`| ||`EXECUTED ON 15/01/2013`| |`ANNEXURE J`|`TRUE COPY OF THE JUDGMENT DATED 29/10/2022`| ||`IN C.C.NO.122/2016 OF JFCM-II, MUVATTUPUZHA`| |`RESPONDENTS’`<br>`ANNEXURES`|`NIL`| //TRUE COPY// PA TO JUDGE