Allowed

Pushpangadan Pillai v. Reji Varghese @ Jose

Kerala HC5 Feb 2020CRL.A/1245/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal against the trial court's dismissal of an offence under Section 138 NI Act. The appellate court held that the trial court erroneously neglected to appreciate the copy of the statutory notice produced and marked as evidence, constituting a clear case of non-application of mind.

What did the court decide?

The judgment of the trial court dated 28-03-2007 is set aside and the case is remanded to the trial court for proper consideration and disposal.

Pushpangadan Pillai Vs Reji Varghese @ Jose — Cheque Dishonour | Kerala HC (2020)

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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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WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941

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CRL.A.No.1245 OF 2007

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AGAINST THE JUDGMENT IN C.C.NO.1010/2004 DATED 28-03-2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, CHENGANNUR

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APPELLANT/COMPLAINANT:

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PUSHPANGADAN PILLAI VALYA VEETTIL, VANAVATHUKKARA MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR.

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BY ADVS. SRI.SAJITH KUMAR V.

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SMT.LEKSHMI G.R

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RESPONDENT/ACCUSED:

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1 REJI VARGHESE @ JOSE, KUZHIKKALAYIL VEEDU, THOTTIYAPPARA, MUNDIYAPPALLI, KAVIYUR, THIRUVALLA.

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

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R1 BY ADVS. SRI.R.SANTHOSH BABU

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R2 BY SMT. PUSHPALATHA M.K, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.1245 OF 2007 2

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JUDGMENT

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Dated this, the 5^th day of February, 2020

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This appeal is directed against judgment dated 28.03.2007 of Judicial First Class Magistrate Court-I, Chengannur (for short 'the trial court') in C.C.No.1010 of 2004. C.C.No.1010/2004 is a prosecution launched by the appellant/complainant under Section 142 of the Negotiable Instruments Act, 1881 (for short 'N I Act'), alleging that the 1^st respondent/accused has committed an offence punishable under Section 138 N I Act.

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In the trial held, the appellant himself mounted the box and deposed as PW1. Exts.P1 to P4 were marked. On the side of the 1^st respondent, no evidence was adduced. The trial court found after appreciation of the entire evidence that the appellant failed to produce a copy of the statutory notice sent by him to the 1^st respondent. Accordingly for the reason that the complainant failed to prove issuance of statutory notice as contemplated under Section 138(b) N.I. Act, the complaint filed by him was dismissed. Aggrieved by the said judgment, the complainant has preferred the appeal on hand.

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CRL.A.No.1245 OF 2007 3

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The contention of Sri.V.Sajith Kumar, the learned counsel for the appellant was that as per the list of documents appended to the complaint, 5 documents were produced and those takes in, the copy of the statutory notice also. The learned counsel has also invited this Court's attention to the proof affidavit filed by the appellant, wherein also the documents produced and marked in evidence include copy of the statutory notice. According to the learned counsel, despite production of statutory notice and getting it marked as Ext.P5, the trial court failed to take note of that and for the reason, the complaint was dismissed.

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On the side of the 1^st respondent, none entered

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appearance, despite service of notice from this Court. This Court had a glance at the complaint as well as the proof affidavit. As rightly pointed out by the learned counsel, copy of the statutory notice was produced alongwith the complaint as document No.5. It is also worthy to note from the proof affidavit filed before this Court that copy of the statutory notice was marked therein as Ext.P5.

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CRL.A.No.1245 OF 2007 4

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Going by the Appendix of the judgment under challenge, only 4 documents were found marked and those include the cheque dated 30.09.2004, the dishonour memo, the postal receipt and the acknowledgment card. Though, a copy of the lawyer notice was evidenced as produced alongwith the complaint and marked in the proof affidavit as Ext.P5, the trial court failed to take note of that, while passing the judgment under challenge. For the sole reason, the complaint was also dismissed.

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This Court has no hesitation to hold in the above context that the trial court is highly erred in dismissing the complaint filed by the appellant herein. It is a clear case of non application of mind by the trial court. The trial court in its venture to pass a judgment must take care to see that the entire evidence on record is appreciated. The court's negligence in doing so, ought not to have been a reason for declining a relief for which the party seeking it has entitlement. Here undoubtedly the accused is prejudiced by the trial court's failure to take note of a document produced by it and placed on record as evidence.

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CRL.A.No.1245 OF 2007 5

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In the result, the Crl.Appeal is allowed. The judgment dated 28.03.2007 in C.C.No.1010 of 2004 is set aside. The case is remanded back to the trial court for proper consideration and appreciation of evidence on record and disposal.

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For the purpose, the parties to this appeal shall appear before the trial court on 12.06.2020. Being a matter of the year 2007, the trial court shall take earnest endeavor to dispose it within 3 months from the date of receipt of a copy of this judgment.

Sd/-

MARY JOSEPH

JUDGE

NAB/ttb

Pushpangadan Pillai v. Reji Varghese @ Jose

Case brief

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Pushpangadan Pillai v. Reji Varghese @ Jose

Case brief

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