Allowed

Nisar P. a. v. Jeela Nair

Kerala HC25 Oct 2022Crl.MC/2301/2022

Case brief

AI extract

What is this about?

The High Court allowed a revision petition filed under Section 482 Cr.P.C. by a complainant in a cheque dishonour case. The petition sought re-examination of a prosecution witness and additional witnesses. The Court modified the impugned order, permitting recall of PW2 and evidence from two additional witnesses, while disallowing the third, directing the trial court to facilitate the addition of e

What did the court decide?

Re-examination of PW2 and examination of witnesses 1 and 2 permitted; trial to be completed at the earliest.

Nisar P. a. Vs Jeela Nair — Cheque Dishonour | Kerala HC (2022)

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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 A. BADHARUDEEN

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TUESDAY, THE 25^TH DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944

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CRL.MC NO.2276 OF 2022

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AGAINST THE ORDER/JUDGMENT IN CMP NO.3456/2020 IN CC NO.3771/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT (NI ACT CASES), ERNAKULAM

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PETITIONER/PETITIONER/COMPLAINANT:

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NISAR P.A, AGED 50 YEARS, S/O.AZEEZ, POKKAYI HOUSE, SAVITHA ROAD, VENNALA P.O., KOCHI, PIN – 682028.

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BY ADVS. KAROL MATHEWS SEBASTIAN ALENCHERRY VIPIN D.G., SC, CUSAT DANIEL A.J.

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RESPONDENTS/RESPONDENT/ACCUSED:

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1 JEELA NAIR, SREE VILLA, ABHINAV LANE, 47/1494-A, CHALIKKAVATTOM, VENNALA P.O. KOCHI, PIN – 682019.

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2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682031.

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BY ADVS. ARUNDAS K.S ABIJITH.K(K/102/2022) AMBILY JOSHY(K/1097/2022)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2022, ALONG WITH Crl.MC.2301/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.2276 & 2301 of 2022

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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 A. BADHARUDEEN

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TUESDAY, THE 25^TH DAY OF OCTOBER 2022/3RD KARTHIKA, 1944

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CRL.MC NO.2301 OF 2022

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AGAINST THE ORDER/JUDGMENT IN CMP NO.3455/2020 IN CC 3771/2017 OF JUDICIAL FIRST CLASS MAGISTRATE COURT (NI

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ACT CASES), ERNAKULAM

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PETITIONER/PETITIONER/COMPLAINANT:

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NISAR P.A., AGED 50 YEARS, S/O.AZEEZ, POKKAYIL HOUSE, SAVITHA ROAD, VENNALA P. O., KOCHI, PIN – 682028.

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BY ADVS. KAROL MATHEWS SEBASTIAN ALENCHERRY VIPIN D.G., SC, CUSAT DANIEL A.J.

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RESPONDENTS/RESPONDENT/ACCUSED:

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1 JEELA NAIR, SREE VILLA, ABHINAV LANE, 47/1494-A, CHALIKKAVATTOM, VENNALA P. O., KOCHI, PIN – 682019.

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2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN – 682031.

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BY ADVS.

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ARUNDAS K.S ABIJITH M.(K/1226/2022)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2022, ALONG WITH Crl.MC.2276/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.2276 & 2301 of 2022

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O R D E R

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Dated, this the 25^th October, 2022

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These petitions have been filed under

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Section 482 of Code of Criminal Procedure (hereinafter referred as 'Cr.P.C.' for short), challenging common order dated 18.12.2021 in CMP Nos.3455/2020 and 3456/2020 in C.C.No. 3771/2017 on the file of Judicial First Class Magistrate Court (NI Act cases), Ernakulam, by the petitioner, who is the complainant in the above case.

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revision petitioner as well as the learned counsel for the 1^st respondent, who is the

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accused in the above case.

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In this matter, the petitioner launched

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prosecution alleging commission of offence under Section 138 of Negotiable Instrument Act (hereinafter referred as 'NI Act', for short),

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Crl.M.C.No.2276 & 2301 of 2022

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when three cheques for Rs.9,00,000/- (Rupees Nine lakh only) dated 12.06.2017, 29.06.2017 and 24.07.2017 allegedly issued by the accused were dishonoured. The case put up by the complainant before the trial court is that the accused issued the cheques towards discharge of the amount due to the complainant as part of the expenses incurred by him for constructing building in the property owned by the accused.

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It is submitted by the learned counsel for the petitioner that, originally a property belonged to the complainant and his wife was transferred in the name of the accused on 04.11.2016. Thereafter, the complainant constructed the building in the said property as agreed between the complainant and the accused. According to him, during examination of DW1, the accused (DW1) had given evidence by positing explanation to counter the evidence of PW2 as regards to encashment of some amount by the complainant and, therefore, PW2 is liable

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Crl.M.C.No.2276 & 2301 of 2022

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to be recalled for the purpose of getting clarification regarding the transactions and transfer of money between the complainant and the accused. Three more witnesses also sought to be examined to strengthen the complainant’s case in view of the revelation stated by DW1.

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The accused resisted the petition

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before the trial court and the trial court dismissed the application merely on the ground that reasons stated for recalling and reopening the evidence were not satisfactory.

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In this matter, the complainant had

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given evidence in support of the contentions in the complaint. PW2 also was examined on the side of the complainant. But DW1 given evidence to contend that the complainant never constructed the building and the building was

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constructed by one Abhilash. The further

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contention was that the three cheques involved

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in this case were given at the time of executing sale agreement between the parties,

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Crl.M.C.No.2276 & 2301 of 2022 6

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which were reported to be destroyed by the complainant.

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It is submitted by the learned counsel

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for the complainant that though three cheques were issued for executing the sale agreement, after execution of sale deed, the complainant reported that those cheques were destroyed. However, thereafter there was misbehaviour on the part of the complainant towards the accused, who is a lady, and for which a

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criminal case also was launched. In retaliation to the said criminal case, earlier cheques issued without any consideration were misused for foisting the present case.

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In the case on hand, the prayer that

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has been put up before the trial court by the complainant is to re-examine PW2 and to examine three more witnesses. I do not think that, reexamination of PW2 would cause any prejudice to the accused.

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Therefore, I am inclined to allow the

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Crl.M.C.No.2276 & 2301 of 2022

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petition so as to recall PW2 for the purpose of examining further with liberty to the other side/accused to cross-examine PW2. As far as witness nos.1 to 3 are concerned, I am of the view that witness nos.1 and 2 alone are required to prove the case of the complainant and, therefore, evidence of witness nos.1 and 2 also are permitted afresh and the prayer to examine witness no.3 stands disallowed. The impugned order stands interfered and modified to the above extent and the trial court is directed to facilitate the complainant to adduce evidence by recalling PW2 and examining witness nos.1 and 2 in the list and complete the trial, at the earliest.

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These petitions stand allowed as indicated

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above.

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Sd/-

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A.BADHARUDEEN, JUDGE.

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Crl.M.C.No.2276 & 2301 of 2022

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APPENDIX OF CRL.MC 2276/2022

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PETITIONER'S ANNEXURES:

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ANNEXURE1	TRUE COPY OF C.M.P. NO.3455 OF 2020 C.C.NO.3771/2017 FILED BY THE PETITION	IN ER.
ANNEXURE2	TRUE COPY OF THE OBJECTION FILED BY COUNSEL FOR THE RESPONDENT.	THE
ANNEXURE3	TRUE COPY OF C.M.P. NO.3456 OF 2020 C.C. NO.3771/2017 FILED BY PETITIONER.	IN THE
ANNEXURE4	TRUE COPY OF THE OBJECTION DATED 3- 2020 FILED BY THE RESPONDENT TO ANNEX A-3 PETITION.	12- URE
ANNEXURE5	TRUE COPY OF THE ADDITIONAL LIST WITNESSES DATED 3-3-2020 FILED BY PETITIONER.	OF THE
ANNEXURE6	CERTIFIED COPY OF THE COMMON ORDER DA 18-12-2021 IN C.M.P.NO.3455/20 AND C. NO.3456/2020 IN C.C.NO.3771/17.	TED M.P.
ANNEXURE7	TRUE COPY OF THE CERTIFIED COPY DEPOSITION OF DW-1 IN C.C. 3771/2017.	OF

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Crl.M.C.No.2276 & 2301 of 2022

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PPENDIX OF CRL.MC 2301/2022

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PETITIONER'S ANNEXURES:

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ANNEXURE1	TRUE COPY OF C.M.P. NO.3455 OF 2020 IN C.C. NO.3771/2017 FILED BY THE PETITIONER.
ANNEXURE2	TRUE COPY OF THE OBJECTION FILED BY THE COUNSEL FOR THE RESPONDENT.
ANNEXURE3	TRUE COPY OF C.M.P. NO.3456 OF 2020 IN C.C. NO.3771/2017 FILED BY THE PETITIONER.
ANNEXURE4	TRUE COPY OF THE OBJECTION DATED 3-12- 2020 FILED BY THE RESPONDENT TO ANNEXURE A-3 PETITION.
ANNEXURE5	TRUE COPY OF THE ADDITIONAL LIST OF WITNESSES DATED 3-3-2020 FILED BY THE PETITIONER.
ANNEXURE6	CERTIFIED COPY OF THE COMMON ORDER DATED 18-12-2021 IN C.M.P.NO.3455/20 AND C.M.P.NO.3456/2020 IN C.C. NO.3771/17.
ANNEXURE7	TRUE COPY OF THE CERTIFIED COPY OF DEPOSITION OF DW-1 IN C.C. 3771/2017.
ANNEXURE 8	CERTIFIED COPY OF DEPOSITION ON PW-1, DATED 10TH MAY 2019 IN C.C. NO.3771 OF 2017 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT (N.I. CASES), ERNAKULAM.
ANNEXURE 9	OFFICE COPY OF THE COMPLAINT FILED BY THE PETITIONER HEREIN, IN C.C. NO.3771
	OF 2017 BEFORE THE JUDICIAL FIRST-CLASS MAGISTRATE (NI ACT), ERNAKULAM.

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Crl.M.C.No.2276 & 2301 of 2022

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ANNEXURE A10 A TRUE COPY OF DEPOSITION OF PW2 IN C.C. NO.3771 OF 2017 BEFORE THE HONOURABLE JUDICIAL FIRST-CLASS MAGISTRATE COURT (NI ACT), ERNAKULAM. ANNEXURE A11 A TRUE COPY OF EXHIBIT P-11 IN C.C. NO. 3771 OF 2017 BEFORE THE HONOURABLE JUDICIAL FIRST-CLASS MAGISTRATE COURT (NI ACT), ERNAKULAM. ANNEXURE A12 A TRUE COPY OF THE B DAIRY PROCEEDINGS IN C.C. NO. 3771 OF 2017 FROM 22.09.2017 TO 29.03.2022.

Nisar P. a. v. Jeela Nair

Case brief

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Nisar P. a. v. Jeela Nair

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