P.T. Joy v. K.V. Sivasankar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941** ## **CRL.A.No.78 OF 2011** **AGAINST THE ORDER/JUDGMENT IN ST 501/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III, THRISSUR** **AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 1181/2010 OF HIGH COURT OF KERALA** ## **PETITIONER/COMPLAINANT:** **P.T.JOY S/O THOMAS, PAARAYIL HOUSE, KOZHUKULLY, THRISSUR.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENTS/ACCUSED:** **1 K.V.SIVASANKARAN, S/O VELAYUDHAN EZHUTHACHAN, KADAVIL HOUSE, KAINOOR VILLAGE,, P.O. KAINOOR, THRISSUR-680014. 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SMT.R.RAJITHA R1 BY ADV. SRI.P.SANTHOSH PODUVAL** ## **OTHER PRESENT:** ## **SR.PP SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5-03-2020, THE COURT ON 17-03-2020 DELIVERED THE FOLLOWING:** Crl.A.78/11 2 ## **JUDGMENT** The complainant in S.T.No.501 of 2005 of the Judicial First Class Magistrate-III, Thrissur aggrieved by the acquittal of the accused in a complaint under section 138 of the Negotiable Instruments Act has preferred this appeal. 2. The complainant alleged that the accused was known to him for the past several years and that he had borrowed a sum of Rs.4,35,000/- on 15.07.2003. Towards the discharge of that legally enforceable debt, a cheque dated 22.11.2004 was issued to him. The cheque on presentation was returned dishonoured. A statutory notice was issued, which was replied. Alleging that, by non payment of the money covered by the cheque, accused has committed an offence punishable under section 138 of the Negotiable Instruments Act, complainant approached the court below by filing the criminal complaint. Accused appeared and contested the proceedings. On the side of the complainant, PW1 was examined and Exts.P1 to P13 were marked. Accused got himself examined as DW1 and Ext.D1 to D9 were marked. The court below, on an evaluation of the rival materials concluded that, PW1 failed to establish that the accused had committed the offence punishable under section 138 of the Negotiable Instruments Act. It was held that, there was no reliable evidence to prove that the accused had borrowed the amount from the complainant and issued a cheque towards Crl.A.78/11 3 the discharge of that liability. Accordingly, accused was found not guilty and acquitted. This judgment is under challenge in the present proceedings. 3. Heard the learned counsel for the appellant and learned counsel for the contesting second respondent. 4. Learned counsel for the appellant challenged the various findings of the court below on merits. It was contended that, court below failed to appreciate the facts and evidence in its correct perspective and arrived at a conclusion, essentially based on surmises. A specific contention was raised by the appellant that the recording of evidence on the side of the accused was contrary to the statutory provision and that the finding of court below was liable to be interfered on that ground alone. Since that contention was found to be a crucial contention and a finding on that was sufficient for the disposal of the appeal, other issues on merits are not being considered. 5. Records revealed that the complainant was examined as PW1 and in lieu of his examination in chief, proof affidavit was filed. He was cross examined by the counsel for the accused touching on the oral evidence tendered by him in the affidavit. Thereafter, on the side of the accused, affidavit in chief was filed, which was accepted by the court below and the accused was cross examined by the counsel for the complainant. 6. The contention set up by the appellant was that, the examination of the accused by filing an affidavit in lieu of the chief Crl.A.78/11 4 examination was illegal and was not authorized by the statute. It was contended that, section 145 of the Negotiable Instruments Act permitted the complainant and his witnesses to be examined in chief by filing the proof affidavits. This was not statutorily extented to an accused, it was contended. Consequently, acceptance of the evidence of the accused in chief examination by accepting of the proof affidavit was illegal and hence, evidence so tendered by the accused was liable to be eschewed, it was contended. It was further contended that, in the light of the above evidence, the only material before the court below was the evidence tendered by the complainant through the examination of PW1. Since there was no rebuttal of the statutory presumptions arising from the evidence of PW1, court below ought to have accepted it and convicted the accused, it was argued. 7. Refuting the above contentions, the contention set up by the learned counsel for the accused was that, section 145 of the NI Act read along with the decision of the Honourable Supreme Court in **Indian Bank Association and Ors. v. Union of India (UOI) and Ors. (AIR 2014 SC 2528)** would show that the benefit of tendering evidence in chief by way of filing affidavit was available not only to the complainant, but also to the accused. It was further contended that, recording of evidence on the side of the both parties was only procedural formality and even after there was any infraction of statutory provision, it will not vitiate trial. It was further contended that, in the light of section 465 of the Cr.P.C, the irregularity, if any in accepting the evidence in chief of the Crl.A.78/11 5 accused by way of an affidavit, will not vitiate the judgment and consequently was liable to be ignored. It was further contended that, even assuming that any mistake or irregularity in accepting the affidavit in lieu of the chief examination of the accused occurred in the year 2009 and at this length of time, the parties should not be relegated for facing a further trial by way of remand. Hence the counsel for the accused pleaded that, remand of the matter was liable to cause prejudice to both sides. 8. Section 145(1) and (2) of the NI Act provides as follows: 145(1) :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) :- The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. According to the complainant, statute permits tendering of evidence by the complainant alone by way of affidavit in chief. It is evident that, section 145(1) specifically refers to the complainant only. Section 145(2) does not refer either specifically or by due implication that the benefit of examination in chief by way of affidavit is extended to the accused also. 9. The above issue came up for consideration before a Single Bench of Madras High Court in **Thanaiya v. Balasamy Nadar (2005 KHC 699).** It was held that, section 145(1) enables the complainant to Crl.A.78/11 6 adduce evidence in chief by affidavit, whereas subsection (2) to Section 145(2) of the Act enables either the prosecution or the accused to file an application for the purpose of examining any person giving evidence on affidavit. Learned Single Judge explained that, if the intention of the legislature was to enable the accused also to give evidence on affidavit, section 145(2) would have been worded similar to proviso (1). In as much as different languages was used in both the provisions, it cannot be contended that the benefit conferred upon the complainant under section 145, proviso (1) was available to the accused also. 10. This issue came up directly before the Honourable Supreme Court in **Mandvi Coop. Bank Ltd. (M/s.) v. Nimesh B Thakore (2010(1) KHC 310).** After analyzing sections 143 and 145 of the NI Act, it was held that, it was clear that the legislature provided for the complainant to give his evidence on affidavit, but did not provide similarly to the accused to similarly do so. It was held that the view taken by the High Court that non mentioning of the accused along with the complainant in subsection (1) to section 145 was merely an omission by the legislature that it could fill up without difficulty was not correct. It was held that, in a large number of cases, the accused may not lead any evidence at all and let the prosecution stand or fall on its own evidence. It was held that, in case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in discharge of any debt or Crl.A.78/11 7 liability. The Supreme Court held that, this was the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. Court concluded that, it was wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. Virtually, Supreme Court overruled the dictum of the Kerala High Court in **Jain Babu v. K.J.Joseph and Another (2008(4) KHC 1),** wherein, it was held that the accused can tender his evidence by way of affidavit. 11. Thereafter, the Judge of this Court in **Tomy T.J. v. State of Kerala and Another (2017(2) KHC 841)** and **Kalladikkattil Mohammed Jamal v. State of Kerala and Ors. (2017(4) KHC 272)** had occasion to reiterate the above legal position. It was held in **Tomy T.J.'s case** that, accused cannot file proof affidavit in lieu of chief examination. It was held that, only a complainant can file such affidavit. In **Kalladikkattil Mohammed Jamal's case,** the observation of the learned magistrate was that the order permitting the accused to file proof affidavit cannot be recalled, since it was barred under section 362 Cr.P.C, was held to be improper. It was held that, the order permitting the accused to file proof affidavit itself was wrong and it was not a judicial order and it was only proceedings of the trial court which has to be treated as non est and ultra vires and the court below ought to have recalled the earlier order. It would not be hit by section 362 Cr.P.C, it was held. Crl.A.78/11 8 12. However, it seems that, Gujarat High Court has taken a different view in **Rakeshbha Imaganbhai Barot v. State of Gujarat** **(2019(1) Crimes 575)(Guj)** . In that case, interpreting section 145 of the Act, it was held that, if evidence of witnesses could be by way of affidavit in terms of section 145 of Act, evidence of accused could also be by way of affidavit. This judgment was rendered by the Single Judge without following the binding precedent in **Mandvi Coop. Bank Ltd.'s case (supra)** . To that extent, above decision is not sustainable and is liable to be ignored. 13. It is seen that, in **Indian Bank Association's case (supra)** specific question regarding the various provisions of the amendments made was taken up for consideration before the Supreme Court. The scope of sections 143 to 147 of the NI Act introduced by amendment of 2002 was considered and explained by the Supreme Court. Learned counsel for the accused specifically relied on the 5[th] direction contained in the above decision. In that, Supreme Court had directed that, examination in chief, cross examination and reexamination of the complainant must be conducted within three months of assigning the case and that the Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Direction (5) was that the witnesses to the complaint and accused must be available for cross examination as and when there was direction by the Court. The above direction was interpreted as a direction that the accused was permitted to be examined in chief by way of affidavit. The direction did not specifically state that Crl.A.78/11 9 the accused was also entitled to be examined by way of affidavit in chief. I am not inclined to accept the argument that the above decision lay down a principle that accused was entitled to be examined in chief by way of affidavit, which was not contemplated with the statute. 14. Learned counsel for the petitioner relied on the decision in **State of Maharashtra and Ors. v. Gopalprasad govindprasad Agarwal and Ors. (AIR 1999 SC 1507).** That was a case which arose under the Prevention of Food Adulteration Act, 1954. Supreme Court though took note of the fact that there was dispute regarding the consent granted, Supreme Court refused to remand the matter taking note of the fact that the offences were committed almost 20 years prior to the decision. Relying on the above decision, learned counsel for the accused contended that, if at all this Court found that, there was any violation in the statutory provision in accepting the evidence in chief, this Court should refrain from ordering remand. 15. I am not attracted by the submission made by the learned counsel for the accused. If the acceptance of the affidavit in chief of the accused was illegal and not authorized by law, interest of justice demands that accused should be given one more opportunity to tender the evidence, if he so chooses. Necessarily, remand will be only natural consequence to such finding. 16. After having appreciated the legal position, I am inclined to hold that the acceptance of the affidavit on behalf of the accused in lieu of the examination in chief was illegal and not authorized under section 145 Crl.A.78/11 10 of the NI Act. Necessarily, the evidence of PW1 is liable to be eschewed. Hence, the accused should be given a reasonable opportunity to tender evidence if the accused so volunteers. Since I am inclined to remand the matter, no further comment is made regarding the remaining findings on merit arrived at by the court below. Learned magistrate shall give reasonable opportunity to the accused to tender the evidence if he is so chooses and after giving a reasonable opportunity to the complainant to cross examine the witness, proceed in accordance with the law and thereafter to pronounce judgment afresh on the entire facts. Court below shall complete the entire process within a period of two months from the date of appearance to be mentioned hereinafter. Criminal appeal stands allowed. Impugned judgment is set aside and the matter is remanded to the court below for a fresh consideration of the matter after giving a reasonable opportunity to the accused to tender the evidence, if he so desires. If he tenders evidence, complainant will be given an opportunity to cross examine the proof. Thereafter, court below shall pronounce the judgment within two months from the date of appearance. Both sides shall appear before the court below on 03.04.2020. **Sd/-** **SUNIL THOMAS** Sbna **JUDGE** Crl.A.78/11 11