Allowed

Sree Gokulam Chits and Finance Co(P) Ltd. v. Sreejith.a.P

Kerala HC2 Sept 2019Crl.MC/4584/2019

Case brief

AI extract

What is this about?

Kerala High Court allowed a Section 311 Cr.P.C. application in a cheque bounce case. The appellate bench held the trial court erred in dismissing the application to summon the Superintendent of Post Office to resolve a discrepancy between written and oral records regarding the date of service of statutory notice, noting that such evidence is vital for determining maintainability.

What did the court decide?

The order of the trial court dismissing Section 311 Cr.P.C. application is set aside, and the petitioner is permitted to summon and examine the Superintendent of Post Office.

Sree Gokulam Chits and Finance Co(P) Ltd. Vs Sreejith.a.P — Cheque Dishonour | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941

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Crl.MC.No.4584 OF 2019(C)

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AGAINST THE ORDER IN ST No.782/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS, NADAPURAM

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PETITIONER/PETITIONER/COMPLAINANT:

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SREE GOKULAM CHITS AND FINANCE CO.(P) LTD, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER,C.V.SIVADASAN,AGED 54 YEARS,S/O.GOVINDAN NAMBIAR,MUKKATTKUNIYIL HOUSE,ERAMALA,ORKKATTERI, KOZHIKODE DISTRICT.

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BY ADVS.

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SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI

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RESPONDENTS/RESPONDENT/ACCUSED AND STATE:

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1 SREEJITH.A.P AGED 41 YEARS S/O.ONAKKAN,ARAKKALAPOYIL HOUSE,THINOOR, KAKKATTIL.P.O,KOZHIKODE DISTRICT,PIN-673506.

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2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI-682031.

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R1 BY ADV. SRI.M.PROMODH KUMAR R1 BY ADV. SMT.MAYA CHANDRAN

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SR.PP.C.N.PRABHAKARAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.4584/2019 2

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ORDER

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Dated this the 2^nd day of September 2019

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The petition on hand is moved by the complainant in a prosecution launched under Section 142 of the Negotiable Instruments Act, 1881 (for short, 'the N.I Act') against the 1^st respondent and pending on the files of the Judicial First Class Magistrate Court, Nadapuram as S.T No.782/2017

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A cheque issued by the 1^st respondent was bounced for the reason of insufficiency of funds and accordingly, the prosecution above was launched to prosecute him for the offence under Section 138 N.I Act. The statutory notice as contemplated under Clause (b) of proviso to sub-section (1) of Section 138 was issued by the petitioner to the 1^st respondent prior to launching of the prosecution, but the acknowledgement card to evidence the receipt of notice by the latter was not received. Therefore, the petitioner has taken steps to obtain information regarding service

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of notice from the Postal Authorities. The Superintendent of Post Office, Vadakara, Department of Posts, India has sent a letter to the petitioner intimating that the registered notice was served on the addressee on 20.10.2017. The letter obtained was produced alongwith the complaint filed to launch the prosecution and it was marked through him as Ext.P5. Lateron the petitioner had examined the postman serving as such, over the area of the addressee and liable to serve the notice on the 1^st respondent, as PW2. PW2 when examined before the Court has stated that the notice issued by the petitioner was served on the 1^st respondent on 17.10.2017 and a document was produced to evidence service, which is Ext.P10 marked in evidence.

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In the aforesaid circumstances, that the petitioner has filed Annexure-B application under Section 311 Cr.P.C for getting the closed evidence of the complainant re-opened and to summon and examine the Superintendent of Post Offices, who had issued Ext.P5 as a witness. The said application was dismissed by the trial court for the reason that it was moved, when the case was posted for hearing after closing the defence evidence and therefore

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Crl.MC.No.4584/2019 4

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belatedly. The trial court has observed that even at the time when the Postman was examined as PW2, the petitioner was aware of the change in date of service of notice spoken by him from that found in Ext.P5 and therefore, the application to summon and examine the Superintendent of Posts could have been filed sufficiently earlier.

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The trial court has observed that the difference in the dates noted from Ext.P5 and P10 cannot be treated as clerical mistakes. According to the trial court it is a lacuna and relying on some decisions of the Apex Court, the trial court has held that the lacuna in the prosecution case cannot be filled up.

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Aggrieved by the order aforesaid, the petitioner has approached this Court in the petition on hand. Sri. K.M Sathyanatha Menon, the learned counsel advanced arguments on behalf of the petitioner and Sri. Pramodkumar, on behalf of the 1^st respondent.

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It is contended by the learned counsel that based on the information supplied by the postal Superintendent, Vadakara through Ext.P5, that notice was served on 20.10.2017, the

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complaint was filed on. Lateron, the Postman was examined as PW2, and then the information was transpired to the effect that notice was served on the addressee on 17.10.2017. The version of PW2 was also substantiated by a document produced by him.

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Since it is disclosed from Ext.P10 issued by the Postal Superintendent, Vadakara that notice was served on the addressee on 20.10.2017 and from the oral evidence tendered by PW2 that notice was served on 17.10.2017, a clarification is inevitable and for the purpose, the Postal Superintendent, Vadakara, who had issued Ext.P10 was sought to be examined.

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Sri. Pramodkumar, the learned counsel for the 1^st respondent has contended that the application was moved at a very belated stage and undoubtedly meant to fill up the lacuna.

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This Court did not find that the examination of the witness now sought by the petitioner is to fill up the lacuna as found by the trial court. The application cannot also be termed as moved belatedly for the reason that the time of filing of application was hearing stage. Section 311 empowers the court to entertain an application for the purpose of summoning and examining a

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witness at any stage during enquiry, trial or other proceeding under the Code. Under Section 311 Cr.P.C, an application seeking to summon and examine a witness is liable to be entertained by a court, if filed during any stage of inquiry, trial or other proceedings of a case under the Code and the evidence proposed to be adduced through the witness sought to be examined appears to the court essential to arrive at a just decision in the case.

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In the case on hand for no fault of the petitioner, inconsistent evidence regarding service of statutory notice has come on record. Moreover, evidence sought to be adduced is decisive of the very maintainability of the complaint which formed the basis of the prosecution as the counting of thirty days to file the complaint will start to run from the date of service of notice. Therefore, the evidence sought to be adduced is material, relevant and also inevitable. Without a clarification on the date being brought on record, it is impossible for the trial court to arrive at a decision, just and proper in the case on hand.

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It is pertinent to note from the order under challenge that the trial court failed to apply its mind to the scope and power of

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court to entertain an application under Section 311 Cr.P.C and the party's entitlement to get the relief contemplated under that provision. To see whether the evidence sought to be adduced is relevant and whether an opportunity needs to be granted to bring that on record, the trial court being conversant with the evidence already let in by the parties to the prosecution is the right forum. The trial court must find out the merits in the proposal made in an application moved under Section 311 Cr.P.C and for the purpose it must apply its mind on the evidence available in the backdrop of the relief sought. In the case on hand, the trial court failed to apply its mind to the facts and circumstances and evidence of the case and thereby, unjustified in passing the impugned order dismissing the application. The impugned order is liable to be reversed for the reasons stated above.

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In the result, Crl.M.C is allowed. Order dated 16.04.2019 of Judicial First Class Magistrate Court, Nadapuram in C.M.P No.1215/2019 is set aside. C.M.P No.1215/2019 is allowed. The trial court shall grant opportunity to the petitioner to take steps to summon the Superintendent of Post Office, who has issued Ext.P5

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and to examine him for the purpose stated by the petitioner in the

said application.

Sd/-

MARY JOSEPH

JUDGE

JJ/

Crl.MC.No.4584/2019 9

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A TRUE COPY OF THE COMPLAINT FILED AS S.T.NO.782 OF 2017 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,NADAPURAM ALONG WITH LIST OF DOCUMENTS DATED 4.12.2017.

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ANNEXURE B CERTIFIED COPY OF THE ORDER IN C.M.P.NO.1215 OF 2019 IN S.T.NO.782 OF 2017 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE,NADAPURAM DATED 16.4.2019.

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RESPONDENT'S/S EXHIBITS: NIL

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//TRUE COPY//

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Sd/-

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PA TO JUDGE

Sree Gokulam Chits and Finance Co(P) Ltd. v. Sreejith.a.P

Case brief

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Sree Gokulam Chits and Finance Co(P) Ltd. v. Sreejith.a.P

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