Dismissed

Anil Joseph v. Job Philip

Kerala HC20 Feb 2014Crl.MC/1105/2014

Case brief

AI extract

What is this about?

High Court dismissed criminal miscellaneous application challenging the dismissal of a request to produce receipts and accounts in a cheque dishonour case. The court held the trial magistrate was justified as the complainant denied possession of documents and was not bound to produce accounts of another party.

What did the court decide?

Petitioner's application was dismissed by the High Court without granting any relief to set aside the trial order.

Anil Joseph Vs Job Philip — Cheque Dishonour | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935

¶5

Crl.MC.No. 1105 of 2014

¶6

AGAINST THE ORDER IN ST.52/2011 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHANGANACHERRY

¶7

PETITIONER(S)/COUNTER PETITIONER/ACCUSED:

¶8

ANIL JOSEPH, AGED 50 YEARS, KAINADY HOUSE, KADAMANCHIRA, THRIKODITHANAM.P.O. CHANGANACHERRY, KOTTAYAM.

¶9

BY ADVS.SRI.JOMY GEORGE

¶10

SRI.SEBASTIAN THOMAS

¶11

RESPONDENT/PETITIONER/COMPLAINANT:

¶12

JOB PHILIP, AGED 57 YEARS, S/O.PHILIP, VETTUKADU KANNAMKERIL HOUSE, ANNIYARTHOLU.P.O., VANDANMEDU, NOW RESIDING AT VETTUKADU KANNAMKERIL HOUSE, NEAR PAREL CHURCH, CHANGANACHERRY, KOTTAYAM.

¶13

R1 BY ADV. SRI.K.SURESH

¶14

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-02-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

¶16

Crl.MC.No. 1105 of 2014

¶17

APPENDIX

¶18

PETITIONER(S)' ANNEXURES

¶19

ANNEXURE A1- TRUE COPY OF THE LAWYER NOTICE DATED 21.12.2009 SENT BY THE COUNSEL OF THE RESPONDENT.

¶20

ANNEXURE A2- TRUE COPY OF THE COMPLAINT DATED 15.2.2010 FILED BY THE RESPONDENT BEFORE THE HON'BLE JUDICIAL MAGISTRATE COURT, CHANGANACHERRY.

¶21

ANNEXURE A3- TRUE COPY OF THE AFFIDAVIT IN LIEU OF THE CHIEF EXAMINATION OF PW1 DATED 9.8.2012 AND HIS DEPOSITION IN CROSS EXAMINATION HELD ON 22.2.2013.

¶22

ANNEXURE A4- TRUE COPY OF THE DEPOSITION OF PW2 DATED 10.6.2013.

¶23

ANNEXURE A5- TRUE COPY OF THE ADDITIONAL STATEMENT GIVEN BY THE ACCUSED UNDER SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE.

¶24

ANNEXURE A6- TRUE COPY OF THE PETITION DATED 5.9.2013 FILED BY THE PETITIONER IN S.T.NO.52/2011 BEFORE THE FIRST CLASS MAGISTRATE COURT-II, CHANGANACHERRY.

¶25

ANNEXURE A7- TRUE COPY OF THE OBJECTION DATED 28.9.2011 FILED BY THE COMPLAINANT TO A6 PETITION.

¶26

ANNEXURE A8- CERTIFIED COPY OF THE ORDER DATED 1.1.2014 IN C.M.P.NO.149/2013 IN S.T.52/2011 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE-II, CHANGANACHERRY.

¶27

RESPONDENT(S)' ANNEXURE

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K. RAMAKRISHNAN, J.

¶33

Crl.M.C.No.1105 of 2014

¶34

Dated this the 20^th day of February, 2014.

¶35

O R D E R

¶36

This is an application filed by the petitioner, who is the accused in S.T.No.52/2011 on the file of the Judicial First Class Magistrate Court -II, Changanacherry, to set aside the order in CMP.No.149/2013 on the files of that court under Section 482 of the Code of Criminal Procedure.

¶37

It is alleged in the petition that petitioner is the accused in ST.No.52/2011 pending before the Judicial First Class Magistrate Court, Changanacherry. That case was taken on file on the basis of a private complaint filed by the respondent herein under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'). According to the complainant, he entrusted the construction work of the building in the property owned by his uncle K.P. Thomas to the accused. The accused was paid Rs.65,00,000/- towards advance payment. The accused abandoned the work in May, 2009. An amount of Rs.14,17,540/- is due to the complainant from the accused and towards part payment, he issued a cheque

¶38

Crl.M.C.No.1105 of 2014 2

¶39

to the complainant for Rs.2,00,000/. The case of the accused is that he had no personal transaction with the complainant. The entire transaction for constructing the building was with Sri.K.P.Thomas and M/s. Kainady Construction, a firm in which the accused and Roy Joseph are partners and no amount is due to the complainant and he never issued any cheque to the accused in connection with the construction of the building of Sri.K.P. Thomas. The entire amount for the work was paid by Sri. K.P. Thomas to the joint name of accused and Roy Joseph by account payee cheques from his account and the same were accepted by them on behalf of M/s. Kainady Construction and receipts were also issued to Sri. K.P. Thomas. Thus, there is no personal money transaction with the complainant and the accused. When Pws 1 and 2 were cross examined, they admitted that they are ready to produce the vouchers or receipts admitted to have been issued by the accused for 65 lakhs and also the bank account statement of PW2 evidencing the payment to the accused. Therefore, the petitioner filed CMP.No.149/2013 directing the complainant to produce those documents as Annexure A6. The complainant filed AnnexureA7 counter to the same and by Annexure-A8 order, the learned

¶40

Crl.M.C.No.1105 of 2014 3

¶41

Magistrate dismissed the application, which is being challenged by the petitioner by filing this petition. Since the respondent also appeared in the petition on admission, this Court felt that it can be admitted, heard and disposed of on merits itself.

¶42

The grievance of the petitioner was that Pws 1 and 2, who are the complainant and one K.P.Thomas, for whose behalf the construction was undertaken by the petitioner had admitted regarding the possession of certain receipts issued by the petitioner and also accounts regarding the same and when an application has been filed for directing the complainant to produce those documents, that petition was dismissed without giving any proper reason. The respondent has filed Annexure A7 counter in which he has stated that he had not issued any voucher in his personal capacity and he is not having the accounts of PW2 with him and so he is not liable to produce those documents. So, under such circumstances, the learned Magistrate has passed the following order:

¶43

Complainant filed objection denying having any receipts in his possession as alleged. (Permission mentioned in the order will be a mistake for possession). He expressed in his objection that he is unable to produce the account details. In the circumstances, the application is dismissed.

¶44

¶45

Crl.M.C.No.1105 of 2014

¶46

In the counter it was mentioned by the respondent regarding the voucher and accounts as follows:

¶47

ക �.പ�. ത��മസ�ന അക�ണ�കന വ�വരങള ഹ�ജര�ക�ന��ന� വ�ദ�ക�

¶48

സ�ധ�ക�ന�ല�ല. അപ��ര� ഏക�ങ�ല�� പ�മ�ണങള വ�ദ�യ�ക$ ക�വശ� ഉള��യ�� വ�ദ� കമ�ഴ� നല��യ�ട�ല�ല�. ക�. പ�. ത��മസ� വര-ങള�യ� ജര/ന�യ�ല തജ�ല� ക0യ�� വര�ന��ണ�.$�യ�ന ന�ലവ�ല ജര/ന�യ�ല ആയ��ന�ല $�യ�കന അക�ണ�കന വ�വരങള വ�ദ�ക� ഹ�ജര�ക�ന��ന� സ�ധ�ക�ന�ല�ല.

¶49

So, it is clear from the counter that he is not in possession of the vouchers as claimed by the accused and he is not bound to produce the account of another person, which is also not in his possession. So, under the circumstances, the Magistrate was perfectly justified in dismissing the application. But, the question whether any adverse inference can be drawn on the basis of the evidence adduced and in the circumstances of the case etc. has to be considered by the Magistrate at the time of appreciating the evidence in accordance with law.

¶50

So, with the above observation, this petition is dismissed.

¶51

Office is directed to communicate this order to the concerned court immediately.

¶52

Sd/-

¶53

K. RAMAKRISHNAN, JUDGE.

¶54

cl /true copy/

¶55

P.S to Judge

¶56

Crl.M.C.No.1105 of 2014 5

Anil Joseph v. Job Philip

Case brief

What is this about?

What did the court decide?

Anil Joseph v. Job Philip

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ubaid Vs State of Kerala

Manoj.K.Menon Vs Sreeja

Dr.Bijubal Vs the State of Kerala

Renuka Vasanth Vs the State of Kerala

S.Manu Vs State of Kerala

Ashok Kumar Vs Cherthala Municipality