Remanded

C.C.Thomas v. Paulson K.George

Kerala HC6 Jan 2017CRL.A/1341/2016

Case brief

AI extract

What is this about?

The High Court, in this criminal appeal against an acquittal under Section 138 of the Negotiable Instruments Act, did not decide the merits of the case. The Court found the trial court failed to effectively consider arguments regarding service of notice and remitted the matter for a fresh decision based on existing evidence.

What did the court decide?

Impugned judgment of acquittal set aside; matter remitted to the Magistrate for consideration afresh on merits based on existing evidence; no fresh evidence permitted.

C.C.Thomas Vs Paulson K.George — Cheque Dishonour | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938

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CRL.A.No. 1341 of 2016 () IN Crl.L.P..1275/2008

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AGAINST THE ORDER/JUDGMENT IN ST 2058/2005 of J.M.F.C., ETTUMANUR DATED 27-092007

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AGAINST THE ORDER/JUDGMENT IN Crl.L.P. 1275/2008 of HIGH COURT OF KERALA DATED 28-08-2008

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APPELLANT(S)/PETITIONER/COMPLAINANT:

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C.C.THOMAS

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CHAMAKALAYIL HOUSE, NEENDOOR P.O., KOTTAYAM.

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BY ADV. SRI.M.J.THOMAS

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RESPONDENT(S)/ACCUSED AND STATE:

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PAULSON K.GEORGE THEKKEKALLALIKUNNEL HOUSE, KALATHOOR P.O.,, KANAKKARY-686 633

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.682 031

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R, BY ADV. PUBLIC PROSECUTOR, SRI. SAIGI JACOB PALETTY R1 BY ADV. SRI.NANDAGOPAL S.KURUP R1 BY ADV. SRI.G.SREEKUMAR (CHELUR)

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

//TRUE COPY//

P.A. TO JUDGE

SKS

ALEXANDER THOMAS, J.

====================

Cr.Appeal No. 1341 of 2016

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Dated this the 6^th day of January, 2017

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JUDGMENT

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Heard Sri.M.J.Thomas, the learned counsel appearing for the appellant (complainant), Sri.G.Sreekumar (Chelur) the learned counsel appearing for R-1 (accused) and Sri.Saigi Jacob Palatty, the learned Prosecutor appearing for R2-State.

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The appellant herein is the complainant in S.T.No. 2058 of 2005 on the file of Judicial First Class Magistrate, Ettumanoor, Wherein the 1^st respondent herein is the accused. The impugned proceedings were initiated on the basis of a private complaint filed by the appellant, on the allegation that the 1^st respondent (accused) has committed offence punishable under Section 138 of the Negotiable Instruments Act.

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The learned Magistrate had acquitted the accused under Section 255 (1) of the Cr.P.C. solely on the ground that there is no

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proper statutory notice as per Section 138 (1) (b) of the Negotiable Instruments Act and that hence the complaint itself is not maintainable. The said judgment of acquittal was rendered by the Judicial First Class Magistrate Court, Ettumanoor on 27.09.2007 in S.T. No. 2058 of 2005. Leave was granted to the appellant under Section 378 (4) of the Cr.P.C. to prosecute the Crl.Appeal so as to impugn the correctness of the said judgment of acquittal rendered by the learned Magistrate. Thereafter, the petitioner has preferred the above Crl.Appeal, which was admitted by this Court on 28.01.2016 and the 1^st respondent (accused) has entered appearance through his counsel.

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It is contended by the appellant that the reasoning adopted by the learned Magistrate in the impugned judgment of the acquittal to come to the conclusion that there is no proper notice is perverse. It is argued that by Exts. P5 and P6, it is proved beyond doubt that there is service of notice on the accused and that the said finding is on the erroneous assumption, that the residence of the

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Cr.A No. 1341 of 2016 3

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accused is at Kuravilangad and not at Kanakkary. It is urged that in the proof of affidavit filed by R-1 (accused), his address is the same as the one shown in the Ext.P5, lawyer's notice and in the complaint. It is further urged that in the complaint also, the address of the accused is shown as Kanakkary and that summons to the accused was served on Kanakkary address. It is found by the learned Magistrate in Para 6 on Page 4 of the impugned judgment, that in Ext. P6 there is no endorsement as to whether or not the said intimation was served on the accused. It is pointed out that the said finding made by the learned Magistrate is absolutely perverse and wrong inasmuch as Ext.P6 would clearly show that the same was duly intimated on the accused on 30.09.2005.

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Sri.M.J.Thomas, the learned counsel appearing for the appellant has made available a certified copy of Ext.P6 for the

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perusal of this Court in this regard. It is pointed out by Sri.M.J.Thomas, the learned counsel appearing for the appellant that the learned Magistrate may have inadvertently omitted to take note

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Cr.A No. 1341 of 2016 4

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of the said endorsement in Ext.P6. Further, it is also pointed out that in Ext.P6, it is also endorsed that the 1^st respondent did not claim the notice and that hence it was returned to the sender. It is thus contended by the appellant that in view of the mandate of Section 27 of the General Clauses Act, it is only to be presumed that there is service of notice. Notice was given to the 1^st respondent and that the 1^st respondent did not claim the notice and hence returned to the sender.

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That is only to be presumed that there is notice of service on the 1^st respondent/accused. Accordingly, it is contended that the court below ought to have found the accused guilty under Section 138 of the Negotiable Instruments Act and ought to have convicted and sentenced in view of the above offence. It is urged that the above said finding by the learned Magistrate regarding service of notice is against the both facts in the above case and that the court below ought to have found that the complainant has complied with the statutory requirement as provided under the Negotiable

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Cr.A No. 1341 of 2016

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Instruments Act etc.

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From the perusal of the para 5 of the impugned

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judgment of the learned Magistrate, it can be seen that four points were framed for consideration viz, i, ii, iii and iv.

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The points for consideration are :-

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(i) Whether the complaint is maintainable against the accused ?

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(ii) Whether the accused issued Ext.P1 cheque for the legally enforceable liability of the accused towards the complainant as alleged?

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(iii) Whether the accused committed offence punishable u/s. 138 of N.I.Act?

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(iv) Sentence or Order?

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The learned Magistrate has entered a finding only on

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point No. 1 and that the complaint is not maintainable due to lack of

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service of the statutory notice and therefore it was not necessary to enter into the other aspects.

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The perusal of the impugned judgment, more particularly para 6 thereof, would make it clear that, none of the above said submissions and contentions now urged by the appellant have been

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effectively considered by the court below. More particularly, the contention raised by the appellant that the finding in para 6 on page 4 of the impugned judgment that in Ext.P6, that there is no endorsement whether the intimation was served or not etc. is plainly wrong and that Ext.P6 would show otherwise etc, is not seen effectively considered. This court is not entering into the merits of the controversy in any manner. However, this court is of the considered view that these aspects deserves serious consideration at the hands of the trial court.

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Therefore, without entering into the merits of the matter in any manner, it is ordered that the matter is liable to be considered afresh by the court below and for that purpose, the impugned judgment is set aside and the matter will stand remitted to the court below for consideration of the entire matter afresh. It is made clear that no fresh evidence need be permitted by the court below and the court below will render its decision on the necessary aspects of the matter including the issue of service of notice, based on the existing

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evidence and records available.

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Accordingly, the following orders are passed :-

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(i) The impugned judgment dated 27.09.2007 of the Judicial First Class Magistrate, Ettumanoor in S.T. No. 2058 of 2005 will stand set aside and the case will stand remitted to the learned Magistrate for consideration afresh.

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(ii) The complainant and the accused will enter appearance through their respective Advocates before the court below at 11 am on 18.02.2017, upon which the court below will fix the date of hearing.

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(iii) The matter shall be disposed off by the court below, without further delay at any rate, within a period of two months therefrom.

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(iv) It is made clear that none of the observations in this judgment shall be considered as an expression of opinion on the part of this court regarding the merits of the controversy, for that is relegated fully within the province of the court

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Cr.A No. 1341 of 2016

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below.

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(v) The parties need not be permitted to adduce any additional evidence and the decision will be rendered on the basis of existing evidence and materials on record.

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With these observations and directions, the Crl.Appeal will stand finally disposed off.

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Sd/-

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ALEXANDER THOMAS JUDGE

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SKS

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//TRUE COPY//

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P.A. TO JUDGE

C.C.Thomas v. Paulson K.George

Case brief

What is this about?

What did the court decide?

C.C.Thomas v. Paulson K.George

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

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