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2012 DIGILAW 814 (KER)

Basheer v. Padmanabhan. N, Vattavila Veedu

2012-08-22

V.K.MOHANAN

body2012
JUDGMENT 1. The complainant in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the appellant as he is aggrieved by the order dated 29/09/2004 in S.T.No.573 of 2004 of the court of the Judicial Magistrate of the First Class-II, Thiruvananthapuram by which the learned Magistrate acquitted the accused under Section 256(1) of the Cr.P.C. 2. The case of the appellant is that he had preferred a private complaint against the first respondent herein, who is the original accused therein, alleging that the cheque dated 15/11/2002 for an amount of Rs.1,50,000/-issued towards the discharge of the liability of the accused due to the complainant, dishonoured for want of sufficient fund in the account maintained by the accused and no payment was made in spite of a formal demand and thus, he had committed the offence punishable under Section 138 of the N.I.Act. Thus, S.T.No.573 of 2004 was instituted in the court of the Judicial Magistrate of the First Class-II, Thiruvananthapuram. It is the further case of the complainant that he had also preferred another complaint against one Viswanathan connected with the dishonour of a cheque for Rs.1,00,000/-and the said case was filed in the court of the Judicial Magistrate of the First Class-II, Thiruvananthapuram as S.T.No.585 of 2004 wherein cognizance was taken, which, on transfer, is re-numbered as S.T.No.267 of 2006 of the Judicial Magistrate of the First Class-VIII, Thiruvananthapuram. 3. According to the appellant by an inadvertent omission, in the office of the counsel for the complainant in the trial court, while endorsing the case number in the docket of the case file kept in the office of the counsel, the case numbers of those cases are interchanged. Thus, instead of giving case number as S.T.No.573 of 2004 in the case against the accused, namely Padmanabhan, case number S.T.No.585 of 2004 was given and therefore the address of the first respondent/accused remained as same, but when the summons were sent, the same have not gone against the real accused, viz., Viswanathan, but sent to Mr.Padmanabhan. It is the case of the appellant that the case against Viswanathan was settled out of court and therefore the appellant, who is the complainant in that case, did not intend to prosecute that matter. It is the case of the appellant that the case against Viswanathan was settled out of court and therefore the appellant, who is the complainant in that case, did not intend to prosecute that matter. The appellant further says that since the amount was repaid by the said Viswanathan, the entry regarding the payment made by the said Viswanathan was recorded on the case file pertaining to S.T.No.573 of 2004 instead of S.T.No.585 of 2004. Therefore, when S.T.No.573 of 2004 was posted, neither the complainant nor his counsel appeared. Consequently, the learned Magistrate issued the impugned order dated 29/09/2004 in S.T.No.573 of 2004 by which the accused Padmanabhan, the case against whom was not settled, is acquitted under Section 256(1) of Cr.P.C. 4. The learned counsel for the appellant vehemently submitted that the impugned order was issued by the learned Magistrate due to the inevitable consequence of the mistake occurred in the office of the counsel for the appellant in noting down the exact case number assigned in the court below with respect to the corresponding files maintained by the counsel in the trial court. Thus, according to the learned counsel, in fact, the case, in which settlement was arrived, is between the complainant and the said Viswanathan and the case between the complainant and the accused Padmanabhan has not been settled so far. But, due to the mistake crept in the office of the counsel for the complainant, in Viswanathan's case, summons have gone in the name of Padmanabhan who in turn appeared in the case in which Viswanathan is the accused and the said Padmanabhan was released on bail by the court below and his plea was also recorded in that case. It is also the case of the counsel for the appellant that since the case between the complainant and Viswanathan was settled out of court, the complainant did not appear in that case and consequently that accused was also acquitted under Section 256(1) of Cr.P.C. for which the appellant has no grievance. But, in the present case, the case against the accused Padmanabhan, is not settled, but finally the impugned order was issued acquitting Mr.Padmanabhan, who is the accused indebted to the appellant for an amount of Rs.1,50,000/-. But, in the present case, the case against the accused Padmanabhan, is not settled, but finally the impugned order was issued acquitting Mr.Padmanabhan, who is the accused indebted to the appellant for an amount of Rs.1,50,000/-. Therefore, the counsel requests for one more opportunity in favour of the appellant to prosecute the matter on merit in S.T.No.573/2004 of the Judicial First Class Magistrate Court-II, Thiruvananthapuram. 5. On the other hand, the counsel for the respondent herein submitted that he had appeared in S.T.No.585 of 2004 of the Judicial Magistrate of the First Class -II, Thiruvananthapuram on getting summons from the said court and he had been bailed out by the same court and his plea was recorded and finally due to the negligence of the complainant, the appellant herein, the learned Magistrate issued the order acquitting him. According to the learned counsel, the entire confusion was created by the appellant and his counsel and the court below was constrained to continue the illegal and improper proceedings till the disposal of that case. It is also the submission of the learned counsel that the case was settled between the complainant and the respondent and the present appeal is filed on an experimental basis to make an unlawful enrichment for the appellant. 6. In view of the particular facts and circumstances involved in the case and in the light of the submissions made by the learned counsel for the appellant and the respondent, by order dated 24/05/2012 this Court called for the records of the cases from the trial court both in S.T.No.573 of 2004 of Judicial First Class Magistrate Court-II, Thiruvananthapuram and S.T.No.267 of 2006 of the Judicial Magistrate of the First Class-VIII, Thiruvananthapuram. 7. 7. Thus, on verification of the records, it is seen that S.T.No.573 of 2004 of court of Judicial Magistrate of the First Class-II, Thiruvananthapuram is instituted upon the complaint i.e., C.M.P.No.389 of 2003 preferred by the appellant against one Padmanabhan wherein the cheque covers an amount of Rs.1,50,000/-whereas it is further seen that the very same complainant has filed another complaint i.e., C.M.P.No.390 of 2003 in the court of Judicial Magistrate of the First Class-II, Thiruvananthapuram against one Viswanathan wherein the cheque was for an amount of Rs.1,00,000/-based upon which S.T.No.585 of 2004 was instituted and the said case, was subsequently, made over to the court of Judicial Magistrate of the First Class-VIII, Thiruvananthapuram wherein the case is renumbered as S.T.No.267 of 2006. 8. As the argument advanced by the counsel was based upon the proceedings and facts and circumstances involved in two cases viz., S.T.No.267 of 2006 and 573 of 2006, the proceedings in S.T.No.267 of 2006 are relevant which I shall refer now. On a perusal of the proceedings of the court below in S.T.No.267 of 2006, it appears that as per the proceedings dated 29/04/2006 of the court below, it is recorded that there is a submission on behalf of the complainant, who was absent, that there is a mistake in the case record forwarded. But, subsequently, almost on all the posting dates the complainant was absent. From the proceedings dated 23/01/2008 it is seen that the learned Magistrate has recorded, on the basis of the submission of the learned counsel on behalf of the complainant that, the proceedings are stayed and directed to produce the stay order. Finally as per the endorsement dated 19/06/2008 it is recorded "19/06/2008 -complainant absent. Represented." Complainant's counsel submitted that summons was served on Padmanabhan, not on the accused in this case who also took bail in this case. Adjourned on request of the counsel for the complainant." By the proceedings dated 29/12/2008 it is seen recorded that "complainant represented. File affidavit stating the present stage of revision and produce stay order if any. On 03/01/2009, it was recorded that complainant represented by counsel. Affidavit file. Called on 19/12/2009. Again on 25/01/2010 it is seen recorded that "complainant and accused absent. No representation for both sides. For production of stay order (last chance) complainant must be present without failure on 25/02/2010. On 03/01/2009, it was recorded that complainant represented by counsel. Affidavit file. Called on 19/12/2009. Again on 25/01/2010 it is seen recorded that "complainant and accused absent. No representation for both sides. For production of stay order (last chance) complainant must be present without failure on 25/02/2010. It is on 25/02/2010, the learned Magistrate passed final order in S.T.No.267 of 2006. [Emphasis supplied] 9. It appears from the 'B' diary proceedings of the court below in S.T.No.573 of 2004 that, though the complaint was filed as early as on 08/01/2003, the complainant was personally made available only on 05/05/2004 to record his sworn statement and on all posting dates, he was absent except on 16/10/2003 on which date there was no sitting. On 31/08/2004, it is seen recorded that the counsel for the complainant stated that the matter is settled and sought time. Finally, on 29/09/2004, it is seen recorded that complainant was absent and no presentation for the complainant, dismissed the complaint under Section 256(1) of Cr.P.C. and ordered to recall steps, if any, pending against the accused. [Emphasis supplied]. Against the above observation and findings of the court below, the contention of the appellant is that the failure in appearance was due to the mistake occured in the office of the counsel in the trial court. According to me, the mere absence of the complainant or his counsel, was not the sole reason for the observation and findings of the court below, but the submission made by the counsel for the complainant in the trial court on 31/08/2004 would have been considered by the learned Magistrate, since the Magistrate was informed through a formal submission that the matter was settled. Now the complainant says that the said submission was not correct. 10. From the experience of this Court it can be seen that, though not generally, but occasionally, disputing the observation and finding recorded by the trial court on the basis of submissions by the counsels, about the settlement of dispute and acquitting accused under Section 256(1) of Cr.P.C. due to the consequent absence of the complainant appeals are being filed and this Court is not in a position to adjudicate such issue in the absence of any material or evidence. Therefore, in case, the complainant is not invoking Section 257 of Cr.P.C. and still making submission about the settlement of the dispute, which is the subject matter of the complaint, it is advisable, that the Magistrate shall in exercise of his judicial discretion, for which no particular provision is necessary especially in the light of the decision of the Hon'ble Apex Court in K.M.Mathew v. State of Kerala [(1992 (1)KLT 1 SC], insist them to file a memo, so that they cannot disown their submission in the trial court and preclude them from taking contentions against the observation and finding of the learned Magistrate of the trial court on such submission if the same is supported by a document. 11. It appears that against the above order of the learned Magistrate in S.T.No.573 of 2004, the appellant herein approached this Court on 20/08/2006 by filing a belated Crl.L.P. The said delay of 571 days seen to have got condoned only on 14/07/2008 on imposing certain conditions and it appears that the amount in terms of the condition contained therein was not paid in time and a petition is seen filed for extension of time. However it is seen that leave was granted on 03/12/2008 as per order in Crl.L.P.No.1356 of 2008 and it appears that notice in the present appeal sent only on 22/08/2011 and thus, the first respondent entered appearance thereafter and thus the matter is pending for consideration and thereafter from 21/03/2012 onwards, the case is being adjourned at the instance of the counsel for the appellant. [emphasis supplied]. 12. Thus, on going by the records of the trial court in the above two cases and from the submission of the learned counsel for the appellant, it can be seen that the entire confusion was created due to the improper, irregular and irresponsible approach in prosecuting the matters for which the complainant as well as his counsel in the trial court alone were responsible. Further, it is relevant to note that the impugned order in the present case was passed as early as on 29/09/2004. Further, it is relevant to note that the impugned order in the present case was passed as early as on 29/09/2004. From the 'B' diary proceedings of the trial court in S.T.No.267 of 2006 (S.T.No.585 of 2004-old number) it can be seen that the so-called mistakes, came to the knowledge of the complainant evidently on 29/4/2006, the date on which on behalf of the complainant representation was made about the mistake in the record, during the pendency of the matter in the trial court in S.T.No.267 of 2006. If there was any bonafide and proper prosecution in S.T.No.573 of 2004, the said mistake should have been noticed by the complainant or his counsel on 29/09/2004, the date on which the impugned order was passed. In S.T.No.267 of 2006, it can be seen that after the filing of the complaint on 08/01/2003, though the above case was posted on 8 days that on 15/03/2003, 14/07/2003, 16/01/2004, 13/05/2004, 09/12/2004, 24/01/2005, 16/02/2005 and 01/08/2005, the complainant was not present in person on all those dates. It was on 16/08/2005 the accused surrendered and he was bailed out and his plea was recorded. Of course, the proceedings of the court below on the above date are not expected to be within the knowledge of the complainant since the case was advanced from 01/02/2006, at the instance of the accused, as coercive steps were pending against him. It appears that on 25/02/2006 though the complainant was present, the accused did not appear and therefore bailable warrant was issued. But on the subsequent date i.e., on 21/04/2006 though the accused was present, the complainant was absent. If the allegation of the complainant is true and had the complainant been present on that day, i.e., on 21/04/2006, he could have realised the mistake occurred and the consequent appearance of wrong person, namely, Padmanabhan, instead of Viswanathan could have been avoided and the court couldhave set the proceedings in correct way by the assistance of the complainant or his counsel. On the subsequent posting date, i.e., on 26/04/2006 also the complainant was absent. Thus it was, on 29/04/2006, it is seen submitted on behalf of the complainant that there was a mistake in the record and suffice to say, on that day also the complainant was absent. 13. On the subsequent posting date, i.e., on 26/04/2006 also the complainant was absent. Thus it was, on 29/04/2006, it is seen submitted on behalf of the complainant that there was a mistake in the record and suffice to say, on that day also the complainant was absent. 13. It is also relevant to note that after the submission on 29/04/2006, the above case i.e., S.T.No.267 of 2006 stood posted for consideration on 08/05/2006, 26/06/2006, 09/08/2006, 28/10/2006, 19/02/2007 and on 28/04/2007. But, on all the above posting dates, the complainant was absent and it is not seen recorded in those proceedings that whether the complainant was represented or not. According to me, it is not out of context to express the situation and inconvenience being faced by this Court as the appellate court in examining the correctness and legality of the orders passed by the trial court under Section 256(1) of the Cr.P.C. due to the absence of the proper datas with respect to the presence or absence of the parties concerned and in case of absence of parties, either the complainant or the accused, the further facts whether they are represented by their respective counsel or not or appropriate application are made or not. The materials and data with respect to the above facts are absolutely relevant and material to dispose of such appeals guided by the positions of law settled through the authorities in this regard. Invariably, all the trial courts are making such endorsements in the proceeding sheets of the case. But in several cases, such facts are not being recorded scrupulously, as in the present case. Therefore, it is advisable and inevitable for the trial court to record in the "B" diary proceedings about those facts in any abbreviated forms so as to enable the appellate court to appreciate those facts correctly and properly. 14. In this juncture, it is also relevant to note that as I indicated earlier, the complaint was filed as early as on 08/01/2003, but the complainant is not seen physically present on any of the following posting dates, i.e, on 15/03/2003, 14/07/2003, 16/01/2004, 13/05/2004, 19/12/2004, 24/01/2005, 16/02/2005 and on 01/08/2005. Thus, it is relevant to note that after 08.01.2003, though there were eight effective postings, the complainant did not appear in person on any of the above dates. Thus, it is relevant to note that after 08.01.2003, though there were eight effective postings, the complainant did not appear in person on any of the above dates. In S.T.No.267 of 2006, especially in the light of the datas furnished above, it can be seen that on several occasions, both the complainant and accused and their counsel were absent and the learned Magistrate was forced to adjourn the case suo-motu. Therefore, in S.T.No.267/2006, it can be seen that had the complainant been present in person in the court on the posting dates of the case, at least from 15.3.2003 till 1.8.2005, he could have realised the mistake, on any of such dates and the proceedings need not be lagged up to 29.4.2006, since during the roll call, the case is being taken by calling the names of the parties to the complaint, i.e., the name of the complainant as well as the accused. Therefore, if the complainant was present physically, he could have realised the fact that the name of the accused called was not correct. 15. It is true, in the decision reported in Alice George v. Deputy Superintendent of Police [2003(1) KLT 339], this Court has held that insistence of personal presence of the accused and the complainant on all dates of posting, irrespective of nature and purpose, cannot be permitted or tolerated and the same is unreasonable and irrational and accordingly, certain guidelines are issued. The Apex Court in the decision in Associated Cement Co.Ltd. v. Keshvanand [1998 Crl.L.J.856], particularly in paragraph 18 of the decision, it is held as follows:- "18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. When the court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But, if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice." (underline supplied) From the above decisions, it can be seen that those decisions are mainly dealing with the powers of the Magistrate Court under Section 256 of Cr.P.C. and certain guidelines are laid down as to how and when such discretionary powers can be exercised. Suffice to say, those decisions are not giving any privilege for the complainant to keep away from the court proceedings, after throwing a complaint in a court of law or restrict the personal appearance of the complainant on particular stage or for any particular purpose. The complainant, who is bona fide, regular and proper in prosecuting the matter, is expected to be present in the court or at least to contact his counsel on every posting dates and to give him proper and timely instructions, which are essential for the smooth progress of the trial of the case and also for the smooth functioning of the court. It will be beneficial to the Advocates in all respect and they can make appropriate submissions before the court on the basis of the fresh instruction so received from their clients. It is not uncommon that orders are being passed under Section 256(1) of the Cr.P.C. solely for the absence of timely instruction from the part of the complainant to his counsel and the consequent non-appearance of the counsel. 16. It is not uncommon that orders are being passed under Section 256(1) of the Cr.P.C. solely for the absence of timely instruction from the part of the complainant to his counsel and the consequent non-appearance of the counsel. 16. Thus because of absence of the complainant in those dates, which I already mentioned, and as the accused failed to appear before the court, the learned Magistrate was forced to take coercive steps against the accused and consequently, on 16.8.2005, the said Padmanabhan appeared in that case and he was released on bail and his plea was recorded. The said mistake was occurred because of the irresponsible and improper conduct and approach on the part of the complainant as well as his counsel, taking note of the exact case number assigned and also while furnishing the address for the summons to be served on the accused. The said mistake could have been rectified, had the complainant been present on any of the dates mentioned earlier. Because of the lapse on the part of the complainant as well as his counsel, the trial court has inadvertently proceeded with an irregular, improper and illegal proceedings and hence, it is for the complainant to face all the consequences thereon. Therefore, according to me, while the trial court has to scrupulously follow the guidelines and the dictum laid down in the decisions cited supra, it is for the complainant and his counsel to cooperate with the inquiry and trial and to see that when the case is called, proper assistance, in accordance with demand of the stage of the inquiry or trial is extended to the court towards the progress of the inquiry or trial as the case may be and for the smooth functioning of the court. Otherwise, the trial court would not be in a position to discharge its responsibilities in the dispensation of criminal justice, especially in view of huge arrears of criminal cases, more particularly heaping of cases connected with the offence under Section 138 of the N.I.Act. 17. It is pertinent to note that in S.T.No.267 of 2006, on 23/10/2007 though the complainant was absent, it is seen represented before the court that a revision petition has been filed in this Court. Thus, when the case was taken on 23/01/2008, the complainant was again absent but his application was allowed. 17. It is pertinent to note that in S.T.No.267 of 2006, on 23/10/2007 though the complainant was absent, it is seen represented before the court that a revision petition has been filed in this Court. Thus, when the case was taken on 23/01/2008, the complainant was again absent but his application was allowed. It is also seen recorded on 23/01/2008 that "It is submitted that proceedings are stayed. Accused absent. No representation also. Produce stay order. 25/02/2008." On 25/02/2008 also the complainant as usual and accused were absent and they were not even represented. The court suo-motu adjourned the case to 04/04/2008, with a direction to produce stay order. It is seen again recorded on 04/04/2008 that "complainant and accused absent. Stay order not filed. Complainant must be present. Call on 09/05/2008." Thus when the case was taken subsequently on 19/06/2008, the complainant was absent and it is recorded that "complainant counsel submitted that summons was served on Padmanabhan, not on accused. In this case, who also took bail in this case. Adjourned on request of counsel for complainant. Call on 06/09/2008". On 28/10/2008 the complainant was absent and hence adjourned the case and posted on 29/12/2008 as last chance. It appears that on the basis of the submission made by the learned counsel for the complainant on 29/12/2008 before the trial court, the learned Magistrate has recorded that "complainant represented, file affidavit stating the present stage of revision and produce stay order if any. 03/01/2009". On the next posting date of the case, i.e., on 03/01/2009 the complainant is not seen physically present. On 27/04/2009 the complainant and counsel were absent. On 20/07/2009 it is recorded that the "complainant and counsel absent. The stay order not produced". Again when the case was taken on 25/01/2010 the complainant and accused were absent and there was no representation for both the sides. It is further recorded on 25/01/2010 as, "for production of stay order (last chance) complainant must be present without failure. 25/02/2010. On 25/02/2010 the learned Magistrate issued the following order; "complainant and accused absent. No representation for both sides. Complainant was given specific direction for appearance before court today. No stay order received by this Court so far. As the complainant is not present, the accused is acquitted under Section 256(1) of Cr.P.C". [Emphasis supplied] 18. 25/02/2010. On 25/02/2010 the learned Magistrate issued the following order; "complainant and accused absent. No representation for both sides. Complainant was given specific direction for appearance before court today. No stay order received by this Court so far. As the complainant is not present, the accused is acquitted under Section 256(1) of Cr.P.C". [Emphasis supplied] 18. The above facts and circumstances and the datas referred to above, itself speak about the sheer negligence and callous indifference from the part of the complainant and his counsel in prosecuting the case in the trial court. Though, on behalf of the complainant, it is submitted before the trial court on 23/01/2008 in S.T.No.267 of 2006 (S.T.No.585 of 2004) that the proceedings are stayed, the learned counsel for the appellant before this Court failed to bring to the notice of this Court any such interim order passed by this Court against any proceedings of the trial court either in S.T.No.267 of 2006 or in S.T.No.573 of 2004. Therefore the submission made on behalf of the complainant in the trial court on 23/01/2008 was absolutely incorrect and false. Thus in S.T.No.267 of 2006, right from 29/04/2006 onwards, the very same complainant and his counsel, were protracting the matter in the trial court. It is also relevant to note that even after the representation made on behalf of the complainant on 19/06/2008 in S.T.No.267 of 2006, the case was being adjourned at the instance of the complainant and his counsel for the reason best known to them. 19. It is also relevant to note that though on 29/04/2006 in S.T.No.267 of 2006, it was represented before the learned Magistrate that there is some mistake in case records, no effective and speedy step is seen taken against the order impugned in this appeal, though the delay petition i.e., Crl.M.Appln.No.8612 of 2006 in Crl.L.P.No.1356 of 2008 was filed as early as on 10/08/2006. Suffice to say, no legal step has also been taken by the complainant in S.T.No.267 of 2006, against the proceedings therein, even after his knowledge, at least from the stage at which he came to the know about the so-called mistake about the case records, as recorded on 29/04/2006, in the above case i.e., S.T.No.267 of 2006 and to put an end to the improper and illegal proceedings, which was pending in the trial court, because of the mischief created by them, and for its procedural and legal quietus. 20. Thus, in the light of the above discussions and in view of the facts and circumstances and the datas referred to above, it is crystal clear that instead of taking any earnest and speedy steps to correct the mistake occurred in the present case i.e., S.T.No.573 of 2004 of the Judicial First Class Magistrate Court-II, Thiruvananthapuram, the complainant and his counsel protracted the proceedings in S.T.No.267 of 2006 of the Judicial First Class Magistrate Court-VIII, Thiruvananthapuram by mis-leading the court below and making false and incorrect submission that the proceedings in S.T.No.267 of 2006 have been stayed by this Court. It is also crystal clear from the above facts and circumstances that though the complainant and his counsel have got ample opportunities to cure the mistake/defect, the said opportunities were not availed of in time due to the lethargic and culpable negligence of the complainant and his counsel. Therefore, any interference with the impugned order, in the given facts and circumstances of the case will amount to a wrong message to the litigant public and to the judicial system, which will accelerate unhealthy practice and procedure in the trial court as occurred in the present case. As there is no provision to award cost, I am not making any order to that effect. In the result, I find no merit in this appeal and accordingly, the same is dismissed.