Shaju Jacob v. M/s HDFC Bank Ltd. and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 CRL.MC NO. 8324 OF 2022 ``` ``` AGAINST THE ORDER IN CMP.NO.2151/2022 IN CC.NO.1557/2016 OF ``` ## **`JMFC( NI ACT CASES), ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` SHAJU JACOB AGED 44 YEARS S/O V.A JACOB, VADAKKETHALA HOUSE, ELTHURUTH P.O, THRISSUR DISTRICT, PIN - 680611 BY ADVS. JOSEPH GEORGE P.K.HASSANKUTTY P.A.REJIMON SAJEEV JOHN T. ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1M/S. HDFC BANK LTD., 1ST FLOOR, CHOICE TOWERS, MANORAMA JUNCTION, KOCHI - 682 016 REPRESENTED BY ITS ASSISTANT VICE PRESIDENT, MRS. SREEKALA S, AGED 44 YEARS 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 R2 BY PP-SMT.C.SEENA ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 8324 OF 2022 2 ``` ## ORDER This is a petition filed under Section 482 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter) and the prayer herein is to set aside order, dated 12.10.2022, in C.M.P.No.2151/2022 in C.C.No.1557/2016. 2. Heard the learned counsel for the petitioner on admission. 3. The learned counsel for the petitioner zealously argued that the sole accused in the above case had filed petition under Section 319 of the Cr.P.C. to implead M/s.Chiriyankandath Agencies and two other partners as co-accused in the above case, on the submission that the evidence adduced would substantiate their involvement. 4. The learned counsel would submit that one among the accused in a trial also has a power to file a petition under Section 319 of the Cr.P.C. Therefore, dismissal of the prayer, that has been pressed into by the petitioner before the trial court, is unsustainable and this court’s interference in the said order is absolutely necessary, in the interest of ``` CRL.MC NO. 8324 OF 2022 3 ``` justice. 5. The learned counsel read out Section 319 of the Cr.P.C. and also placed decision of the Apex Court reported in Manjeet Singh v. State of Haryana [2021 (4) KLT Online 1156 (SC)] . In this decision, the Apex Court summarised the powers of the court under Section 319 of the Cr.P.C. as under: “13. The ratio of the aforesaid decisions on the scope and ambit of the powers of the Court under Section 319 CrPC can be summarized as under: (i) That while exercising the powers under Section 319 CrPC and to summon the persons not charge-sheeted, the entire effort is not to allow the real perpetrator of an offence to get away unpunished; (ii) for the empowerment of the courts to ensure that the criminal administration of justice works properly; (iii) the law has been properly codified and modified by the legislature under the CrPC indicating as to how the courts should proceed to ultimately find out the truth so that the innocent does not get punished but at the same time, the guilty are brought to book under the law; (iv) to discharge duty of the court to find out the real truth and to ensure that the guilty does not go unpunished; (v) where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial; (vi) Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it; ``` CRL.MC NO. 8324 OF 2022 4 ``` (vii) the court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency; (viii) Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial; (ix) the power under Section 319(1) CrPC can be exercised at any stage after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial stage intended to put the process into motion; (x) the court can exercise the power under Section 319 CrPC only after the trial proceeds and commences with the recording of the evidence; (xi) the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents; (xii) it is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation; (xiii) if the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, it can exercise the power under Section 319 CrPC and can proceed against such other person(s); (xiv) that the Magistrate/court is convinced even on the basis of evidence appearing in examination-in-chief, powers under Section 319 CrPC can be exercised; (xv) that power under Section 319 CrPC can be exercised even at the stage of completion of examination-in-chief and the court need not has to wait till the said evidence is tested on cross-examination; ``` CRL.MC NO. 8324 OF 2022 5 ``` (xvi) even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial court to summon other persons as well who were named in FIR but not implicated in the charge-sheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 CrPC and even those persons named in FIR but not implicated in the charge-sheet can be summoned to face the trial, provided during the trial some evidence surfaces against the proposed accused (may be in the form of examination-in-chief of the prosecution witnesses); (xvii) while exercising the powers under Section 319 CrPC the Court is not required and/or justified in appreciating the deposition/evidence of the prosecution witnesses on merits which is required to be done during the trial. “ ## 6. Section 319 of the Cr.P.C. is the enabling provision, which is extracted hereunder: ## 319. Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the court proceeds against any person under subsection (1), then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; ``` CRL.MC NO. 8324 OF 2022 6 ``` (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. ## 7. As per the order impugned, the learned Magistrate appraised the contentions raised by the petitioner and held in Paragraph No.6 as under: “6. In the matter at hand, in order to proceed against three of the other partners of M/s Chiriyankandath Agencies, a legal demand notice u/s 138 (b) has to be sent to the partnership firm and the three partners so as to be proceeded against. Reverting to the documentary evidence on record, the complainant had sent the legal demand notice only to the accused to his residential address on 13.01.2016. No notice was sent to the three of the afore mentioned persons or the partnership firm by the name M/s Chiriyankandath Agencies. Undoubtedly, an offence u/s 138 of the Act being in the category of a technical offence, the procedural mandates for instituting a complaint as specified in section 138 (a) (b) and (c) has to be strictly complied with. In the present case, this court is inept to proceed against the three partners of M/s Chiriyankandath Agencies for the reason that no notice u/s 138 (b) of the Act was sent to them in compliance of the said section. Since no such notice was sent, the afore persons cannot be said to have committed an offence u/s 138 of the Act.” This is the base on which the learned Magistrate was not inclined to invoke ``` CRL.MC NO. 8324 OF 2022 7 ``` its power under Section 319 of the Cr.P.C. so as to implead the persons sought to be impleaded with the petitioner, as additional accused. I do not find any illegality in the said order for the reasons narrated in Paragraph No.6 hereinabove and therefore, this petition is found to be meritless and is accordingly dismissed. Sd/- A. BADHARUDEEN JUDGE Bb ``` CRL.MC NO. 8324 OF 2022 8 ``` ## **`APPENDIX OF CRL.MC 8324/2022`** ``` PETITIONER’S ANNEXURES ``` ``` ANNEXURE A-1TRUE PHOTOCOPY OF THE COMPLAINT IN C.C 1557/2016 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE (N.I ACT CASES) ERNAKULAM. ANNEXURE A-2TRUE PHOTOCOPY OF THE PETITION IN CMP 2151/2022 IN C.C 1557/2016 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE (N.I ACT CASES) ERNAKULAM. ANNEXURE A-3TRUE PHOTOCOPY OF THE ORDER DATED 12-10-2022 IN CMP 2151/2022 IN C.C 1557/2016 OF THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE (N.I ACT CASES) ERNAKULAM. RESPONDENTS’ NIL ANNEXURES ``` //TRUE COPY// PA TO JUDGE