Disposed
Binoy Sebstian @ Binoy K.S. v. State of Kerala
Kerala HCCrl.MC/3397/2017
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COURT OF KERALA AT ERNAKULAM PRESENT: THE…
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939
Crl.MC.No. 3397 of 2017 ()
--------------------------CRL.MP. NO.1660/2017 IN CC. NO. 3258/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA.
PETITIONER/COMPLAINANT:
BINOY SEBASTIAN @ BINOY K.S, AGED 32 YEARS, S/O SEBASTIAN, KOKKAT HOSE, MUKUNDAPURAM TALUK, KADUPPASSERY VILLAGE, KADUPPASSERY. P.O, THOMMANA DESOM, THRISSUR DISTRICT.
BY ADVS.SRI.N.M.MADHU, SMT.C.S.RAJANI.
RESPONDENTS/STATE/ACCUSED:
1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
2. JACKSON VARGHESE, AGED 58 YEARS, PROPRIETOR, D.D. ENTERPRISES, MECHANICAL ENGINEERS & CONTRACTORS, 2A GOVIN, BEHIND GANESH STORES, ASHOK NAGAR, KANDIVALI EAST, MUMBAI-400 101.
R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY. R2 BY ADVS. SRI.C.K.SAJEEV, SRI.P.J.JOSEPH.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rs.
Crl.MC.No. 3397 of 2017
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE A1 PHOTOCOPY OF THE PROOF AFFIDAVIT DATED 21.06.2014 FILED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA ANNEXURE A2 PHOTOCOPY OF THE APPLICATION DATED 04.03.2017 FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IRINJALAKUDA. ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 22.03.2017 IN CRL.M.P.NO.1660/2017 IN C.C.NO.3258/2011 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, IRINJALAKUDA.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S. TO JUDGE
rs.
ALEXANDER THOMAS, J.
Crl.M.C.No.3397 Of 2017
Dated this the 5th day of June, 2017.
The petitioner herein is the complainant in C.C.No.3528/2011 on the file of the Judicial First Class Magistrate Court, Irinjalakuda, alleging offence punishable under Sec.138 of the Negotiable Instruments Act, in which the 2nd respondent has been arrayed as accused in respect of the alleged dishonour of the cheque for Rs.22 lakhs. Bereft of all the details in this case, heart of the challenge in the present petition is directed against the impugned Anx.A-3 order dated 22.3.2017 rendered by the trial court (Judicial First Class Magistrate Court, Irinjalakuda), whereby the application filed by the petitioner-complainant under Sec.311 of the Cr.P.C has been partly disallowed. The plea of the petitioner was to summon the documents in relation to a bank account from the Axis Bank, Haridwar and also to summon and examine the Manager of that Branch as an additional prosecution witness, in order to prove the contents of the summoned documents. The learned Magistrate as per the impugned order has allowed the plea for summoning of the
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Crl.M.C.No.3397 Of 2017
documents from the Axis Bank, Haridwar Branch, but has refused to summon the Manager of the said Branch as a witness of the complainant. It is this order that is under challenge in the present petition filed under Sec.482 of the Cr.P.C.
follows:
“7. .................................... The complainant wants to prove that the arrangement between himself and accused is that of partnership of business. There cannot be any documents in the possession of the bank to prove the same. It is the duty of complainant to prove the so called arrangement between himself and accused. In order to prove partnership, there is absolutely no need to examine the Bank Manager. Bank does not need any partnership deed to open an account. Complainant also wants to prove that the account from which Ext.P1 cheque was issued is a joint account maintained by himself and the accused. Therefore, I am of the view that this petition can be partly allowed. The prayer to summon the Bank Manager from Haridwar to Irinjalakuda to prove the existence of the partnership arrangement between the complainant and the accused cannot be allowable. Whereas, the prayer to summon the documents can be allowed. In the result this petition is allowed in part.”
The directions given by the Magistrate in para 8 of the impugned order
read as follows:
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Crl.M.C.No.3397 Of 2017
“The Manager Axis bank Haridwar is directed to cause produce account opening form in respect of the account No.358010200002448 maintained with Axis bank as well as the documents showing the name and address of the authorized signatory to operate the account No.358010200002448 [Account opening form]. Petitioner is directed to take steps within 3 days.”
4. Sri.N.M.Madhu, learned counsel appearing for the
petitioner, submits that what has now been summoned is an account opening form of the account concerned and that in case the 2nd respondent-accused takes a stand that the signature of one of the parties shown in the bank account opening form is not that of the accused, then the complainant can effectively prove his case that the accused was also a party to the said application for opening of the bank account only by summoning the Manager of the Branch, who is the custodian of the documents which have been kept in the ordinary course of the business of that bank. This appears to be the sheet anchor of the contention advanced by the learned counsel appearing for the petitioner/complainant. Without getting into the rival pleas, this Court is of the view that it cannot now be ascertained or assumed as of now as to what will be contents of the documents that are to be summoned from the Axis Bank, Haridwar Branch and also whether the accused will take a stand that the signature, which is alleged to be his in the account opening form, is not pertaining to him, etc. In the event, after summoning of the said documents, if the
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Crl.M.C.No.3397 Of 2017
accused takes a stand either regarding the admissibility of the documents or regarding his alleged signature therein, etc., then it will be open to the complainant to make an appropriate application for summoning the Bank Manager concerned in which case the learned Magistrate shall consider the merits of such application at that stage, after hearing both sides. It is made clear that this Court has not made any opinion on the merits of the said controversy, which can arise only at a future point of time and no observations of this Court shall be construed as an expression of opinion, which will be exclusively within the province of the trial court when such an issue is actually raised before that court.
With these observations and directions the Crl.M.C stands finally disposed of.
ALEXANDER THOMAS, Judge.
bkn/-
3 issues framed by the court
Whether the trial court should exercise its discretion to summon the Branch Manager of the bank as a witness to prove the existence of a partnership arrangement and to verify signatures on account ope
Whether a fresh application for summoning aewitness should be entertained at a subsequent stage if the contents of the summoned documents are disputed by the accused.
Whether the dismissal of the prayer under Section 311 of the Cr.P.C needs to be sustained in the exercise of inherent powers under Section 482 of the Cr.P.C.
2 provisions across 1 enactments
BINOY SEBASTIAN @ BINOY K.S
THE STATE OF KERALA
JACKSON VARGHESE
ALEXANDER THOMAS
As recorded by the court registry
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