Allowed

Marykutty v. the State of Kerala

Kerala HC20 Feb 2024Crl.MC/2913/2018

Case brief

AI extract

What is this about?

Complainant in a cheque dishonour case lost the original cheque and sought to adduce a photocopy as secondary evidence; the Magistrate dismissed her application holding Section 138 prosecution could not rest on a photocopy. The High Court set aside that order and permitted adduction of secondary evidence.

What did the court decide?

Order dated 22-09-2017 in Crl.M.P.No.1792/2016 S.T.No.1007/2014 (JMFC-II Kollam) set aside; petitioner permitted to adduce secondary evidence of the lost cheque in accordance with law.

Marykutty Vs the State of Kerala — Cheque Dishonour | Kerala HC (2024)

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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 BECHU KURIAN THOMAS

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TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945
CRL.MC NO. 2913 OF 2018

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AGAINST THE ORDER/JUDGMENT ST 1007/2014 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II, KOLLAM

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PETITIONER:

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MARYKUTTY
AGED 65 YEARS
D/O MARIYAMMA, MUTHIRAVILA PADINJATTATHIL VEEDU,
NEDUMPANA P.O. NEDUMPANA VILLAGE, KOLLAM DISTRICT
BY ADVS.
SRI.K.V.ANIL KUMAR
RADHIKA S.ANIL
SWAPNA VIJAYAN(K/001165/2006)

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RESPONDENTS:

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1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM- 682 031

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2 ROSAMMA JOHNSON

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W/O JOHNSON, THADATHIL VEEDU,PALAMUKKU, KANNANALLOOR
P.O.KOLLAM DISTRICT, PIN-691 576
BY ADV SRI.M.L.SURESH KUMAR

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OTHER PRESENT:

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SRI. M.C. ASHI (PP)

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

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20.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 2913 OF 2018

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BECHU KURIAN THOMAS, J.

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Crl.M.C. No. 2913 of 2018

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Dated this the 20^th day of February, 2024

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ORDER

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Petitioner challenges the order dated 22-09-2017, in Crl.M.P.No.1792/2016 S.T.No.1007/2014 on the files of the Judicial First Class Magistrate’s Court-II, Kollam. As per the impugned order, the petitioner's application for adducing oral evidence regarding a lost cheque was dismissed, stating that no prosecution under Section 138 can be made on the basis of a photocopy of the cheque.

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In the decision in Chitaranjan v. Jayarajan 2005 KHC 132 , a learned Single Judge of this Court had held that in the case of cheques, it would be improper to deny the complainant the opportunity to substantiate his grievance by adducing secondary evidence, which is permitted under Section 65 of the Evidence Act. Similarly, in a recent judgment of this Court in Crl.R.P. No.578/2023 another learned Single Judge had relied upon the aforesaid judgment in Chitaranjan’s case and held that if the circumstances enable the party to the litigation to adduce secondary evidence, the Court cannot refuse permission to adduce such secondary

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CRL.MC NO. 2913 OF 2018

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evidence. Whether the evidence so adduced is admissible or relevant is a question that will have to be decided after an appreciation of the relevant document.

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In the instant case, the defacto complainant contends

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that the original cheque was lost from the possession of the son of the complainant and only a photocopy is available. The said photocopy was sought to be adduced as secondary evidence, which was declined by the learned Magistrate. Considering the nature of documents sought to be produced, I am of the view that the observation of the learned Magistrate that prosecution under 138 of N.I.Act cannot be made on the photocopy of the cheque is not legally tenable and is hence required to be interfered with.

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Accordingly, I set aside the order dated 22-09-2017 in Crl.M.P.No.1792/2016 S.T.No.1007/2014 on the files of the Judicial First Class Magistrate’s Court-II, Kollam and permit the petitioner to adduce secondary evidence of the lost cheque, in accordance with law.

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The Crl.M.C is allowed as above.

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BECHU KURIAN THOMAS JUDGE

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AJM

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CRL.MC NO. 2913 OF 2018

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APPENDIX OF CRL.MC 2913/2018

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PETITIONER ANNEXURES ANNEXURE A A TRUE COPY OF THE COMPLAINT IN ST NO.1007/2014 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM ANNEXURE B A TUE COPY OF THE AFFIDAVIT AND PETITION IN CRL.M.P. NO.1792/2016 IN ST NO.1007/2014 ANNEXURE C A TRUE COPY OF ORDER DATED 22-092017 IN CRL.M.P. NO.1792/2016 IN ST NO.1007/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM TRUE COPY

Marykutty v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Marykutty v. the State of Kerala

Case brief

What is this about?

What did the court decide?

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