Sudhamol P.V. v. Mariamma Varghese and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 27TH DAY OF JANUARY 2020 / 7TH MAGHA, 1941** ## **OP(Crl.).No.59 OF 2015(Q)** **AGAINST THE ORDER/JUDGMENT IN ST 440/2013 DATED 30-04-2014 OF JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM** ## **PETITIONER:** **SUDHAMOL P.V. AGED 45 YEARS (WRONGLY STATED AS SUDHA MOHAN) JUNION PUBLIC HEALTH NURSE, PUBLIC HEALTH CENTRA, AYMANAM PO., RESIDING AT MALLICHIRA MARIYATHURUTHU P.O., MALLUSSERY, KOTTAYAM DISTRICT** **BY ADVS. SRI.SUBHASH CYRIAC SRI.BOBBY MATHEW KOOTHATTUKULAM SMTSHEEBA JOSEPH** ## **RESPONDENTS:** - **1 MARIAMMA VARGHESE** **W/O.VARGHESE, ELAMOOTTIL HOUSE KIZHIMATTOM SOUTH, PANCHIKADU, KOTTAYAM DISTRICT 686533** **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, 682031** **R1 BY ADV. SRI.SABU S.KALLARAMOOLA SRI C K PRASAD-PP** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24-01-2020, THE COURT ON 27-01-2020 DELIVERED THE FOLLOWING:** O.P.(Crl) No.59/2015 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ O.P.(Crl) No.59 of 2015 --------------------------------------------Dated this the 27[th] day of January, 2020 ## **J U D G M E N T** The petitioner is the accused in the case S.T.No.440/2013 on the file of the Court of the Judicial First Class Magistrate-III, Kottayam. 2. The aforesaid case was instituted upon the complaint filed against the petitioner by the first respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). 3. The petitioner/accused appeared before the trial court on receiving summons. She filed an application under Section 265B(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for plea bargaining. 4. Learned Magistrate found that the plea made by the O.P.(Crl) No.59/2015 3 petitioner was voluntary and with full knowledge of the consequences. Learned Magistrate accepted the disposition of the case entered into between the petitioner and the complainant. Consequently, learned Magistrate convicted the petitioner for the offence punishable under Section 138 of the Act and sentenced her to imprisonment till the rising of the court and also directed her to pay an amount of Rs.8,00,000/- as compensation to the complainant and in default of payment of compensation, to undergo simple imprisonment for a period of six months. 5. The petitioner has filed this original petition under Article 227 of the Constitution of India challenging the legality of the aforesaid judgment (Ext.P3) of the trial court on the ground that the learned Magistrate did not follow the procedure prescribed for plea bargaining. 6. Heard the learned counsel for the petitioner and also the first respondent/complainant. 7. Learned counsel for the petitioner contended that the petitioner had signed the application for plea bargaining and other papers not voluntarily. Learned counsel would submit that, O.P.(Crl) No.59/2015 4 in the absence of examination of the petitioner _in camera,_ she had no sufficient opportunity to express her mind before the learned Magistrate. Learned counsel would contend that absence of examination of the accused _in camera_ would go to the root of the disposition entered into by the parties and that the judgment passed by the trial court on the basis of such disposition is not sustainable in law. 8. The procedure for plea bargaining is contained in Chapter XXIA of the Code. Section 265B(1) of the Code provides that, a person accused of an offence may file an application for plea bargaining in the court in which such offence is pending for trial. Section 265B(2) of the Code states the particulars to be mentioned in an application filed under Section 265B(1). It also provides that the application shall be accompanied by an affidavit sworn by the accused which shall contain certain particulars. Section 265B(3) of the Code states that, on receiving the application for plea bargaining, the court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the O.P.(Crl) No.59/2015 5 case. ## 9. Section 265B (4) of the Code is very important. It reads ## as follows: _“(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under subsection (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-_ _(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;_ _(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the_ O.P.(Crl) No.59/2015 6 _provisions of this Code from the stage such application has been filed under sub-section (1).”_ ## 10. In **Joseph v. State of Kerala : 2017 (4) KLT 1203** , this Court had observed that it may not be appropriate for the trial court to take recourse to plea bargaining process under Chapter XXIA of the Code in relation to the complaints for an offence punishable under Section 138 of the Act. However, this observation cannot be held to be good under law in view of the observation made by the Supreme Court in **Meters and Instruments Private Limited v. Kanchan Mehta : AIR 2017** **SC 4594** that it will be open to the court to consider the provisions of plea bargaining to have speedy disposal of cases under Section 138 of the Act. 11. In the instant case, admittedly, the petitioner was not examined _in camera_ by the trial court as required under Section 265B (4) of the Code. The basis on which the trial court entered a conviction against the petitioner is stated in the third paragraph of Ext.P3 judgment as follows: O.P.(Crl) No.59/2015 7 _“This Court took cognizance of the offence u/s.138 of N.I.Act and proceeded with the trial. While so, today the accused and complainant were present before the Court and submitted that the matter was amicably settled between the parties. The accused filed a plea bargaining petition under chapter 21A of Cr.P.C. agreeing to pay an amount of Rs.8,00,000/within a period of six months (i.e. on or before 31.10.2014). A mutual satisfactory disposition was arrived at with the concurrence of both the parties and they signed in it. I have prepared a report as per S.265(d) of Cr.P.C. Since the disposition was voluntarily made, the plea of the accused is accepted. I am satisfied that the plea is voluntarily made with full knowledge of consequences. Considering the above aspects, I feel that the disposition arrived between the parties can be accepted in the interest of justice.”_ 12. It is evident from Ext.P3 judgment that the accused was not examined _in camera_ by the trial court before accepting the disposition made by the parties. The records of the case also do not reveal that the accused was examined _in camera_ by the trial court. O.P.(Crl) No.59/2015 8 13. The expression used in Section 265B(4) of the Code is “the Court shall examine the accused _in camera”._ Examination of the accused _in camera_ is not an empty formality. It is a mandatory procedure. It is a process conducted to ascertain whether the plea made by the accused is voluntary. Examination of the accused _in camera_ affords the opportunity to the court to ensure that there was no pressure or force or compulsion from any person on the accused to enter into a settlement of the case or to make a plea of guilt. 14. Conviction entered against the accused and the sentence imposed on her, without scrupulously following the procedure prescrbied in the Code for conducting plea bargaining, cannot be sustained. Ext.P3 judgment is liable to be set aside. 15. Consequently, the original petition is allowed. Ext.P3 judgment is set aside. The case S.T.No.440/2013 on the file of the Court of the Judicial First Class Magistrate-III, Kottayam is restored to file. The learned Magistrate shall proceed with the trial of the case in accordance with law and dispose of it at the earliest, at any rate, within a period of three months from the O.P.(Crl) No.59/2015 9 date of production of a certified copy of this judgment before that court. The complainant as well as the accused shall appear before the trial court on 20.02.2020. The lower court records shall be returned forthwith. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr 10 O.P.(Crl) No.59/2015 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 P1:TRUE COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT** **EXHIBIT P2 P2:TRUE COPY OF THE AFFIDAVIT AND PETITION FOR PLEA BARGAINING** **EXHIBIT P3 P3:TRUE COPY OF THE ORDER IN ST NO.440/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT III KOTTAYAM** **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE