Allowed

C.Ajith Kumar v. Sreenivasa Hegden

Kerala HC10 Jan 2018Crl.MC/1278/2017

Case brief

AI extract

What is this about?

The High Court quashed a summons issued to a practicing lawyer requiring them to give evidence in a complaint involving cheque dishonour. The court held the evidence sought fell within the proviso to Section 126 of the Evidence Act, making the summons unnecessary and violative of a previous High Court order.

What did the court decide?

The summons dated 01.02.2017 issued to the petitioner by the Judicial First Class Magistrate's Court-I, Ettumanoor, is hereby quashed.

C.Ajith Kumar Vs Sreenivasa Hegden — Cheque Dishonour | Kerala HC (2018)

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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 B.KEMAL PASHA

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WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939

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Crl.MC.No. 1278 of 2017

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CMP.NO.4390/2013 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I,ETTUMANOOR

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PETITIONER:

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C.AJITH KUMAR, 'SAROVAR', GEORGE EDEN ROAD, KALOOR, KOCHI-17.

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BY ADV.SRI.P.K.RAVISANKAR

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RESPONDENT(S):

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1. SREENIVASA HEGDEN, S/O.PURUSHOTHAMA HEGDEN, 'KRISHNA THREETHAM', KUMARANELLOOR P.O., PERUMBAYIKKADU VILLAGE, KOTTAYAM.

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

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R1 BY ADVS. SRI.ABRAHAM P.GEORGE SMT.K.V.LEKSHMY SMT.M.SANTHY SRI.M.P.JAYAN R2 BY PUBLIC PROSECUTOR SRI.T.R.RANJITH

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-01-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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Crl.MC.No. 1278 of 2017 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES:

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ANNEXURE I	TRUE COPY OF THE CRL.M.P.NO.4390/2013 FILED BY 1ST RESPONDENT BEFORE THE JUDICIAL MAGISTRATE COURT-1, ETTUMANOOR.
ANNEXURE II	TRUE COPY OF THE LAWYER NOTICE DATED 31-05-2010 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT.
ANNEXURE III	TRUE COPY OF THE ORDER DATED 21-07-2014 IN CRL.M.C.NO.2891/2014 OF THE HON'BLE HIGH COURT OF KERALA.
ANNEXURE IV	TRUE COPY OF THE SUMMONS DATED 03-11-2016 ISSUED TO THE PETITIONER.
ANNEXURE V	TRUE COPY OF THE ORDER DATED 18-11-2016 IN CRL.M.C.NO.7899/2016 OF THIS HON'BLE COURT.
ANNEXURE VI	TRUE COPY OF THE SUMMONS ISSUED IN C.M.P.NO.4390 OF 2013 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ETTUMANOOR.
ANNEXURE VII	TRUE COPY OF THE PETITION DATED 01-04-2015 RECEIVED BY THE PETITIONER ALONG WITH ANNEXURE-VI SUMMONS.
RESPONDENT'S	ANNEXURES: NIL

/TRUE COPY/

P.S.TO JUDGE

sts

B. KEMAL PASHA, J.

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................................................................ CRL.M.C. No. 1278 of 2017 ............................................................... Dated this the 10^th day of January, 2018

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O R D E R

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Annexure VI summons issued to the petitioner is under challenge. The petitioner is a practising lawyer. On an earlier occasion, the petitioner was summoned before the court below for giving evidence. The petitioner challenged the same before this Court through Crl.M.C. No.2891/2014. The said Crl.M.C. was disposed of by this Court through Annexure III order whereby the court below was directed not to summon the petitioner in case the evidence to be tendered is not one coming within the proviso to Section 126 of the Indian Evidence Act.

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Even after that, at the instance of the complainant once again the petitioner was summoned before the court

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CRL.M.C.No. 1278 of 2017

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-: 2 :-

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below through Annexure IV summons in C.M.P.

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No.4390/2013. In the said summons it was shown that the case relates to an offence under Section 138 of the N.I. Act. The same was challenged by the petitioner before this Court through Crl.M.C.No.7899/2016. This Court allowed the Crl.M.C. and quashed the said summons. The court below was again directed to issue fresh summons in tune with the directions given by this Court in Annexure III order, in case the evidence to be tendered comes within the purview of the proviso to Section 126 of the Evidence Act.

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Presently, Annexure VI summons has been issued, with the copy of the petition filed by the complainant before the court below. Once again, the petitioner has been summoned. The same matters covered by Annexure III order have been highlighted in the petition filed by the complainant along with Annexure VI summons. Apart from the above, a new fact as to whether the petitioner had issued the notice after seeing the title deed is also

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CRL.M.C.No. 1278 of 2017

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-: 3 :-

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incorporated. The said aspect is also not one coming withing the purview of the proviso to Section 126 of the Evidence Act. Matters being so, this is a case wherein an attempt is being made by the court below to unnecessarily summon and drag the lawyer of the opposite party to the court below for the purpose of giving evidence. When the matter is clearly covered by Annexure III and Annexure V, the court below ought not to have issued Annexure VI summons to the petitioner. The examination of the petitioner is quite unnecessary and therefore, Annexure VI summons is liable to be quashed.

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In the result, this Crl.M.C. is allowed and Annexure VI summons dated 01.02.2017 issued by the Judicial First Class Magistrate's Court-I, Ettumanoor, is hereby quashed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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[True copy]

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P.S. to Judge.

C.Ajith Kumar v. Sreenivasa Hegden

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C.Ajith Kumar v. Sreenivasa Hegden

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