V.A. Thomas v. Standard Store Wares and Tiles, Aluva and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939** **Crl.MC.No. 7219 of 2017 () --------------------------** **CC 809/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA. .........** ## **PETITIONER/ACCUSED:** ## **-------------------** **V.A. THOMAS, THEKKUMKATTIL STORES, M.C.ROAD, KOOTHATTUKULAM POST, KOOTHATTUKULAM, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.V.SANTHOSH JOSE** ## **RESPONDENTS/COMPLAINANT:** **------------------------** **1. STANDARD STORE WARES AND TILES, ALUVA, KERALA - 683 101, REPRESENTED BY ITS MANAGER, M.K.VALSAN. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **Crl.MC.No. 7219 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A. COPY OF THE COMPLAINT FILED U/S 138 OF THE NEGOTIABLE INSTRUMENTS ACT. RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.M.C.No.7219 of 2017 ----------------------------------------- Dated this the 15[th] day of November, 2017 ## _**O R D E R**_ The petitioner is the sole accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.809 of 2017 on the file of the Judicial First Class Magistrate Court-I, Aluva, instituted on the basis of a complaint filed by the first respondent proprietary concern. 2. The complaint was initially filed in the year 1991 and was then numbered as C.C.No.517 of 1991. The petitioner/accused had not appeared before the trial court and therefore, the case was included in the long pending case list by the trial court and was assigned the number as L.P.No.8 of 1994. According to the petitioner, he had not received summons in this case and that only recently he came to know that non bailable warrant has been issued against him. The petitioner would also aver that the address of the accused shown in the impugned Annexure-A complaint was wrong and therefore, summons could not be served on him for no fault of the petitioner/accused. The case projected in the impugned Annexure-A complaint is that the petitioner/accused had purchased goods from the complainant's shop for Rs.3,500/- and : **:2::** Crl.M.C.No.7219/17 towards payment of the said value, he had issued the cheque dated 20.8.1991 for Rs.3,500/- drawn from his account and payable in favour of the complainant which when presented resulted in dishonour. It is further stated that after coming to know of the details of the complaint, the petitioner had duly surrendered before the trial court concerned (Judicial First Class Magistrate Court-I, Aluva) and had secured bail on 7.6.2017 and had expressed his willingness to plead guilty and suffer the sentence that may be imposed by the trial court. But, the learned Magistrate had adjourned the case for appearance of the respondent/complainant for the last posting date and that now it is posted to 5.12.2017. It is further stated the complainant's proprietary concern has been closed down long ago and that the whereabouts of the individual who is shown as the Manager representing the proprietary concern as per the complaint is not known. In spite of these aspects, the petitioner/ accused is willing to plead guilty and the court is not permitting to do the same by not recording his plea. Accordingly, the petitioner has filed this Crl.M.C. with the following prayers: _“For these and other grounds to be urged at the time of hearing, it is most humbly and respectfully prayed that this Hon'ble Court may be pleased to direct the Judicial First Class Magistrate Court No.I to record the plea of the petitioner/accused in order to enable him to plead guilty.”_ 3. Heard Si.P.V.Santhosh Jose, learned counsel appearing for the petitioner/accused and Sri.Jestin Mathew, learned prosecutor appearing for R2/State. : **:3::** Crl.M.C.No.7219/17 4. This Court had passed order dated 24.10.2017, wherein interalia the Registry was directed to get a report from the trial court about the details of the proceedings in the said complaint and as to whether the complainant and his counsel has appeared before the trial court on various posting dates after the petitioner was granted bail and to explain the reasons as to why the trial court has not considered the invocation of the powers under Section 256(1) of the Cr.P.C. due to such non appearance of the complainant and his counsel. In furtherance of that order, the trial court concerned (Judicial First Class Magistrate Court-I, Aluva) has now furnished report dated 31.10.2017 to the Registry of this Court, wherein it has been interalia stated that the original case was transferred to the Long Pending Case on 31.1.1994 and the accused had later entered appearance on 8.6.2017 pursuant to the non bailable warrant issued from that court and bail was granted to the accused with the direction to serve copy to the complainant and file memo. The case was posted to 8.7.2017 and on that day, the case was notified for posting to 26.7.2017, on which day the accused was not present and memo was not filed as directed by the trial court. Hence, the application of the accused was rejected and non bailable warrant was issued for appearance on 29.8.2017 and that on 29.8.2017, a petition was filed to recall the warrant which was allowed and the case was posted to 5.12.2017 for appearance of the complainant. It is further : **:4::** Crl.M.C.No.7219/17 stated that one Sri.P.K.Sajan is the counsel for the complainant who is actively practising before the trial court and that the accused did not comply with the order of the trial court to serve copy of the complaint to the complainant's counsel and file memo. There is no practice of calling long pending cases in the open court. The complainant is also not aware that the accused had advanced the posting of the case and had secured bail and further that Section 256(1) of the Cr.P.C. can be only invoked in cases which the complainant is no more and the legal heirs are not interested in proceeding with the case. The cheque amount involved in this case is Rs.3,500/-. 5. Sri.P.V.Santhosh Jose, learned counsel appearing for the petitioner/accused, would submit that he is also appearing for the accused before the trial court and his Advocate Clerk had endeavoured to serve copy of the memo as directed by the trial court on Sri.P.K.Sajan, Advocate, who is holding vakalat of the complainant in the above case and that the said counsel had refused to accept the said memo served by the accused stating that he is not aware about the present whereabouts of the complainant for a very long time. The said explanation given by the petitioner appears to be fair and credible. The stand taken by the Magistrate that Section 256(1) of the Cr.P.C. is invocable only where the complainant is no more and where the legal heirs of the deceased complainant are not interested to proceed with the : **:5::** Crl.M.C.No.7219/17 complaint is absolutely incorrect and untenable. Section 256 of the Cr.P.C. provides as follows : _“_ _**256. Non-appearance or death of complainant** - (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :_ _Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case._ _(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”_ 6. The accused had surrendered only on 8.6.2017 and as furnished by the trial court's report the intimation regarding advancing of the case has not been given to the counsel for the complainant. Therefore, certainly the trial court cannot be found fault with for not having immediately acted upon the request of the accused inasmuch as reasonable time should be granted to the complainant about the appearance of the accused and about the renumbering of the complaint. 7. This Court had also directed as per the order dated 24.10.2017 whereby the Inspector of area concerned was directed to serve notice on the first respondent/complainant through the Inspector of Police of the area concerned and that in case the first respondent is not now available in that address, the Inspector of Police should conduct : **:6::** Crl.M.C.No.7219/17 an effective enquiry to find out the correct whereabouts and present address of that party and serve notice on such new address. The Inspector of Police, Aluva, has now furnished report dated 13.11.2017 to the learned Prosecutor attached to this Court stating that in compliance with this Court's order dated 24.10.2017, he had conducted an enquiry about the whereabouts of the complainant and it has been found that Sri.M.K.Valsan, the Manager, Standard Storewares and Tiles, Aluva, is now residing at Mepramkutty House, Mangoolpara, Iringal.P.O., Vadakara, Kozhikode District, Pin 673521 and his phone numbers are 0496-260 2088 (Residence), Mobile 7034613940. 8. In the light of these aspects, it is ordered that the trial court will immediately issue notice to the complainant represented by its Manager, Sri.M.K.Valsan, through the present address of Sri.M.K.Valsan (Mepramkutty House, Mangoolpara, Iringal.P.O., Vadakara, Kozhikode District, Pin 673521), directing the said person to personally appear before the trial court, on a day to be fixed by the trial court which is within ten days from the date of receipt of the said notice. The trial court will post the case on the said notice should also be issued by the trial court to Sri.P.K.Sajan, Advocate for the complainant to appear before the court on the said day. If the complainant and the counsel are not appearing on the said day, the trial court may adjourn the case to the next week. If the complainant and his counsel are not appearing on the : **:7::** Crl.M.C.No.7219/17 even on the second occasion, the case may again be posted as final chance to the week thereafter. If the complainant and his counsel does not appear before the trial court even then the trial court should consider invoking powers under Section 256 (1) of the Cr.P.C. to deal with the contingency. It will open to the accused through his counsel to file an appropriate application in that regard and the trial court should deal with the manner in terms of the provisions contained in Section 256(1) of the Cr.P.C. The said notice to be sent to the party as well as the counsel specifying that the complainant should immediately appear before the trial court to adduce evidence if he is interested to prosecute the complaint any further. If the complainant and the counsel does not appear as indicated herein above within the said time limit, then it has to be inferred that the complainant is not interested to adduce evidence and that he is no longer interested to prosecute the complaint any further. Then the trial court should deal with the matter in the manner envisaged in Section 256 of the Cr.P.C. It is also ordered that in case the complainant appears and submits that he is interested to prosecute the complaint further, then an opportunity should be given to the accused to pay the amount of Rs.3,500/- covered by the cheque along with interest thereon @ 9% per annum from the date of cheque 20.8.1991, up to the date of payment along with a cost of Rs.20,000/-. In terms of the directions issued by the Apex Court in the case in : **:8::** Crl.M.C.No.7219/17 _**M/s.Meters and Instruments Pvt. Ltd. and another v. Kanchan Mehta**_ reported in _**2017(5) KHC 177 (SC) = 2017 (4) ILR (Ker) 181**_ a reasonable time by three weeks therefrom should be granted to the accused to pay the said amounts in the manner indicated above in cash or by demand draft to the complainant/counsel for the complainant and if such payment is made and if the trial court is satisfied that such payment is made, then the trial court will issue necessary orders under Section 258 of the Cr.P.C. stopping the impugned proceedings, in terms of the directions issued by the Apex court in paragraph 18 of the abovesaid decision in _M/s.Meters and Instruments Pvt. Ltd. and another v. Kanchan Mehta_ reported in _2017(5) KHC 177 (SC)._ The accused and the counsel for the accused shall appear before the trial court at 11 A.M. on 6.1.2018 and will produce the certified copy of this order before the said court in order to effectuate further steps in compliance with the directions given herein above. The Registry will forward a copy of this order to the trial court at the cost of the petitioner. ## With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl