MALARVIZHY v. A.T.VENKIDACHALAM & STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **Crl.Rev.Pet.No. 675 of 2017 () ------------------------------ORDER IN C.M.P. 1412/2016 OF J.M.F.C., CHITTUR DATED 22-04-2017** **REVISION PETITIONER(S)/RESPONDENT/ACCUSED: -----------------------------------------** ## **MALARVIZHY** **AGED 36 YEARS, W/O.JAYAKUMAR, ANNA NAGAR, 5/112, CBE ROAD, MAHALINGAPURAM, POLLACHI TALUK.** **BY ADVS.SRI.G.HARIHARAN** **SRI.A.SREERAMAKRISHNAN SRI.PRAVEEN.H. SMT.K.S.SMITHA SRI.M.V.VIPINDAS SMT.JINU ANTONY** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **----------------------------------** ## **1. A.T.VENKIDACHALAM** **AGED 48 YEARS, S/O.K.P.THIRUMALAISWAMY (LATE), AALAMBADI, KOZHINJAMPARA, PALAKKAD DISTRICT, PIN -678 104.** ## **2. STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **R1 BY ADV. SRI.RAJESH SIVARAMANKUTTY R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-06-2017, ALONG WITH CR.RP.672/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SKG** ## **Crl.Rev.Pet.No. 675 of 2017 () -------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** ## **------------------------** - **A1 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT TO CONDONE THE DELAY OF 547 DAYS IN FILING THE COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT AGAINST THE PETITIONER** - **A2 TRUE COPY OF THE COMPLAINT DATED 03.10.2013 FILED BY THE IST RESPONDENT UNDER SECTION 142 OF THE NEGOTIABLE INSTRUMENTS ACT BEFORE THE JFCM COURT, CHITTUR AGAINST THE PETITIONER** - **A3 TRUE COPY OF THE OBJECTION DATED 09.08.2016 SUBMITTED BY THE PETITIONER BEFORE THE JFCM COURT, CHITTUR IN CONNECTION WITH CMP.NO.1412/2016** - **A4 TRUE COPY OF THE ORDER MADE CMP.NO.1412/2016 DATED 22.03.2017 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHITTUR.** ## **RESPONDENT(S)' ANNEXURES** - **-----------------------NIL** **/TRUE COPY/** **==> picture [83 x 7] intentionally omitted <==** **----- Start of picture text -----**<br> P.S. TO JUDGE<br>**----- End of picture text -----**<br> **SKG** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.Nos.675 & 672 Of 2017 --------------------------------- Dated this the 27th day of June, 2017. ## O R D E R The respective orders under challenge in these 2 revision petitions are those at Anx-IV whereby the trial court has condoned the delay in re-presenting the complaints. The revision petitioners in these 2 revision petitions are the accused in S.T.No.985/2017 and S.T.No.984/2017 both on the file of the Judicial First Class Magistrate Court, Chittur. Those complaints have been instituted by the 1[st] respondent herein alleging offence punishable under Sec.138 of the N.I.Act. 2. Heard Sri.G.Hariharan, learned counsel appearing for the petitioner and Sri.Rajesh Sivaramankutty, learned counsel appearing for R-1 complainant and the learned Prosecutor appearing for R-2 State. 3. In the matter arising in Crl.R.P.No.675/2017, the 1[st] respondent had filed the complaint on 3.10.2013. In terms of the judgment dated 1.8.2014 rendered by the Apex Court in Dasarath Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 ::2:: Crl.R.P.Nos.675 & 672 Of 2017 SCC 129, the said complaint was returned by the trial court to the complainant for re-presentation before the proper court as the drawee bank was situated at Pollachi. The complainant ought to have represented the complaint before the proper court within 30 days. It is the case of the petitioner that consequent to the return of the complaint he had entrusted the complaint with an Advocate in Pollachi for representing the same before the Magistrate Court at Pollachi to prosecute the case further. That he had again made enquiries with his lawyer engaged at Pollachi about the re-presentation of the case and the lawyer has assured that he has taken steps to re-present the complaint. Later, amendments were brought to the provisions in the Negotiable Insruments Act, whereby Secs.142(2) and Sec.142A were newly introduced with effect from 15.6.2015. So by the operation of the amended provisions in the N.I.Act, such pending complaints which were re-presented before 15.6.2015 stood transferred to the original court. However, only then the petitioner came to know that his lawyer engaged at Pollachi had not filed the complaint in that court and he had taken back the complaint from his counsel at Pollachi and he had represented the same before the original Magistrate Court at Chittur on ::3:: Crl.R.P.Nos.675 & 672 Of 2017 1.3.2016. The petitioner had filed application to condone the delay in that regard, which was allowed as per the impugned Anx-IV order dated 22.4.2017, after hearing both sides. The facts in Crl.R.P.No.672/2017 are also broadly similar. The learned Magistrate had condoned the delay in both the cases after hearing both sides and has taken cognizance in both the cases and have issued summons to the accused and both the matters are posted for appearance of the accused. The delay has been condoned as per Anx-IV order dated 22.4.2017 passed in both these cases. 4. The Division Bench of this Court in the judgment in Binoy K.Mathew v. Godley Dev John & anr. reported in 2015 (4) KHC 243 (DB) had occasion to consider the case of those complaints which were returned to the complainant in view of the judgment dated 1.8.2014 of the Apex Court and were not re-presented before the “proper court” within the 30 days time limit, but were so re-submitted later, prior to coming into force of the amended provisions of the N.I.Act with effect from 15.6.2015. In such cases the Division Bench of this Court in Binoy K.Mathew’s case (supra) has held that nothing in the judgment dated 1.8.2014 of the Apex Court would preclude the exercise of the statutory ::4:: Crl.R.P.Nos.675 & 672 Of 2017 powers conferred on the Magistrate in terms of Sec.142(1)(b) r/w Sec.470 of the Cr.P.C in considering the question of delay condonation and time exclusion. However, their Lordships have further held that in view of the subsequent amendment brought about to Sec.142A of the Act, resort to the provisions contained in Sec.470 Cr.P.C r/w proviso to clause (b) of Sec.142(1) may not be really necessary in such cases in view of the provisions contained in Sec.142A which contained the non obstante clause thereto which covers the pending cases before any court whether filed before it or transferred to it before the commencement of the ordinance and that such cases shall be transferred to the court having jurisdiction under Sec.142(2) of the N.I.Act as if that sub-section had been in force at all material times. Therefore, the Division Bench held that in such cases all what is necessary is only to direct the complainant to re-submit the complaint before the court having territorial jurisdiction in terms of Sec.142(2) of the N.I.Act. However, the present cases stand on a slightly different footing. The complaints were not re-presented prior to the coming into force of the amended provisions with effect from 15.6.2015 and have been actually resubmitted only thereafter. In such cases, this Court has held as per ::5:: Crl.R.P.Nos.675 & 672 Of 2017 order dated 16.1.2017 in Crl.M.C.No.2079/2016 that the provisions contained in Sec.470 of the Cr.P.C r/w proviso (b) to Sec.142(1) could be resorted to and the applicants have the right to get the delay condonation application to be considered on merits by the trial court concerned. However, while doing so, the learned Magistrate concerned is bound to issue notice of hearing to the accused before taking a decision in that regard. This Court has also held in the order dated 14.6.2017 Crl.R.P.Nos.492 & 493 Of 2017 that where the complaints like the instant one having been filed only after the amended provisions with effect from 15.6.2015, time up to 14.6.2015 may not be a hindrance in the delay condonation process and it would be excluded in such cases, by importing the principles discernible from the provisions in Sec.470 of the Cr.P.C., which deals with time exclusion, and that the trial court should only reckon the delay from 15.6.2015 up to the date of actual re-presentation. The complaints in these case have been represented on 1.3.2016 and therefore the delay from 15.6.2015 up to 1.3.2016 alone need be seriously considered for delay condonation. The complainant has stated that immediately after the return of the complaints, after the Apex Court judgment dated 1.8.2014 in Dasarath ::6:: Crl.R.P.Nos.675 & 672 Of 2017 Rupsingh Rathod v. State of Maharashtra & anr. reported in (2014) 9 SCC 129, he had entrusted the case to his counsel at Pollachi to present the complaints in the Magistrate Court there. However, repeatedly he was given to understand that the complaints have been so re-filed, etc. It was only much later, coming into force of the provisions in the N.I.Act, that when he contacted his Advocate at Pollachi, it could be known that those complaints were not re-submitted before the Magistrate Court at Pollachi. The learned Magistrate has found that these averments of the complainant need not be disbelieved and moreover the learned Magistrate has also ordered cost to the complainant coming to Rs.2,000/- each as a condition precedent for condoning the delay. It is also pointed out by the complainant that the cost has already been deposited. In these cases, it is to be borne in mind that the question of delay condonation and time exclusion should not be considered as in other ordinary matters as a lot of dislocation has occurred after the return of the complaints for re-presentation before the proper court in terms of the judgment dated 1.8.2014 of the Apex Court. Thereafter, there was legislative intervention by amendment of the provisions and the position was substantially changed and the ::7:: Crl.R.P.Nos.675 & 672 Of 2017 complainant have to again ensure that it is filed before the court having territorial jurisdiction over the collection bank area. This has caused considerable hardship and difficulties to the litigants in Sec.138 complaints. Therefore, the learned Magistrate is right in taking a liberal and lenient view in cases like this, as otherwise it would result in unnecessary hardship and difficulties, which would result in miscarriage of justice. In view of these aspects, this Court is of the firm view that the impugned orders are not tainted by any illegality of impropriety. 5. Moreover, the learned Advocates appearing on both sides now submit that their respective parties are seeking the option of mediated settlement. Accordingly, it is ordered that the trial court should ensure that both parties are referred for mediation if both parties are so willing and all reasonable endeavours are taken to settle the disputes through mediation. Hence it is ordered that if both parties are willing to seek the option of mediated settlement, then the matter will be referred to the nearest mediation centre and reasonable time of at least 2-3 months should be granted to the parties to settle their disputes through mediation. In case the mediation efforts succeed, then the ::8:: Crl.R.P.Nos.675 & 672 Of 2017 complainant may be permitted to withdraw the complaints as envisaged in Sec.147 of the N.I.Act or both parties may be permitted to file application for joint compromise petition for compounding under Sec.147 of the N.I.Act r/w Sec.320 of the Cr.P.C. If the mediation process is not successful, then it is open to them to initiate appropriate proceedings in accordance with law. With these observations and directions, the aforecaptioned Criminal Revision Petitions stand finally disposed of. ALEXANDER THOMAS, Judge. bkn/-