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2017 DIGILAW 827 (KER)

Philip Kurian v. James P K

2017-05-31

ALEXANDER THOMAS

body2017
ORDER Alexander Thomas, J. 1. The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in S. T. No. 549 of 2013 on the file of the Judicial First Class Magistrate Court - I, Ranni, instituted on the basis of a complaint preferred by the first respondent herein. 2. The Trial Court, as per the impugned judgment rendered on 29/10/2014, had convicted the petitioner for the above said offence and had sentenced him to undergo simple imprisonment for three months and to pay compensation of Rs.4,00,000/- to the complainant under S.357(3) of the Cr. P. C. and in default of payment of compensation, to undergo simple imprisonment for three months. 3. Aggrieved thereby the petitioner had preferred Crl. Appeal No. 191 of 2014 on the file of the Additional Sessions Judge, Pathanamthitta. The Appellate Court concerned, as per the impugned judgment rendered on 28/01/2017, had confirmed the conviction and the sentence imposed on the petitioner. It is aggrieved by the concurrent findings of both the Courts below that the petitioner has preferred the instant Crl. Revision Petition by taking recourse to the provisions contained in S.397 read with S.401 of the Code of Criminal Procedure. 4. Though service of notice has been duly served on R1 / complainant, there is no appearance for that party. 5. Heard Sri. V. Sethunath, learned counsel appearing for the revision petitioner / accused and Sri. Jestin Mathew, learned prosecutor appearing for R2 / State. As indicated herein above, there is no appearance for R1 / complainant in spite of due service of notice. 6. Sri. V. Sethunath, learned counsel appearing for the revision petitioner / accused, has raised various contentions in this case, so as to impugn the judgments of both the Courts below. Jestin Mathew, learned prosecutor appearing for R2 / State. As indicated herein above, there is no appearance for R1 / complainant in spite of due service of notice. 6. Sri. V. Sethunath, learned counsel appearing for the revision petitioner / accused, has raised various contentions in this case, so as to impugn the judgments of both the Courts below. One of the contentions which has been strongly urged by the learned counsel appearing for the revision petitioner / accused is that the date of the dishonoured cheque in the complaint has been mentioned as 30/01/2013, whereas the dishonoured cheque is stated to bear the date 03/01/2013 and that the petitioner has been called upon by the Criminal Court only to answer the gravamen of the charges and allegations in the impugned complaint that inter alia, the dishonoured cheque is bearing the date 30/01/2013, whereas the cheque produced by none other than the complainant as well as the deposition given by him would show that the dishonoured cheque is bearing the date 03/01/2013 and that so long as the complainant has not amended or corrected the said averments in the complaint about the date of the dishonoured cheque, the petitioner cannot be found guilty of the allegation in the complaint that the cheque executed by him on 30/01/2013 is established, as it goes against the very documents and subsequent case set up by the complainant. 7. In this regard, learned counsel appearing for the revision petitioner would also submit that this Court in the judgment in Ninan v. Rufus Olivero reported in 1994 (1) KLT 984 , 1994 KHC 203: 1994 (1) KLJ 811 : ILR 1994 (3) Ker. 359 has held that even though the criminal Trial Court is not expressly conferred with the power to amend or correct mistakes in a complaint, it has the intrinsic enabling powers in the interest of justice to correct mistakes which are apparent on the record or which are merely clerical or technical. 359 has held that even though the criminal Trial Court is not expressly conferred with the power to amend or correct mistakes in a complaint, it has the intrinsic enabling powers in the interest of justice to correct mistakes which are apparent on the record or which are merely clerical or technical. Learned counsel appearing for the revision petitioner / accused has also placed reliance on the judgment of the Apex Court in S. R. Sukumar v. S. Sunaad Raghuram reported in 2015 (9) SCC 609 , 2015 (3) KLJ 552, 2015 (3) KLT 382 wherein it has been categorically held that in spite of the absence of explicit enabling powers in the Cr.P.C. conferring power on a Criminal Court to correct mistakes in a complaint, the Criminal Court will have the power to correct or amend mistakes or errors which are of inconsequential nature or which are clerical or typographical in nature. On this basis, learned counsel for the petitioner would submit that the complainant had the time and opportunity to correct these crucial mistakes in the complaint by filing an application before the Trial Court and as the complainant has not chosen to avail such remedy, so as to rectify such culpable errors, then he cannot be given the luxury of relying on the excuse that the said averment in the complaint was a mistake and that the documents produced by him will speak otherwise. Inasmuch as the accused in a criminal trial as in the instant one is called upon only to answer the gravamen of the charges and allegations specifically and cogently raised therein and so long as the allegation in the complaint is that the petitioner had issued the cheque dated 30/01/2013, which was dishonoured and so long as the complainant is not able to prove that crucial fact, the accused is entitled for an acquittal. Various other contentions in the matter has been raised by the learned counsel for the revision petitioner in this case. Since the abovesaid aspect has not been seriously and properly considered by both the Courts below, this Court is of the firm view that it would require serious consideration at the hands of the Appellate Court afresh. 8. In this view of the matter, the impugned appellate judgment dated 28/01/2017 passed by the Sessions Court, Pathanamthitta in Crl. Since the abovesaid aspect has not been seriously and properly considered by both the Courts below, this Court is of the firm view that it would require serious consideration at the hands of the Appellate Court afresh. 8. In this view of the matter, the impugned appellate judgment dated 28/01/2017 passed by the Sessions Court, Pathanamthitta in Crl. Appeal No. 191 of 2014 (arising out of S. T. No. 549 of 2013 on the file of the Judicial First Class Magistrate Court - I, Ranni) will stand set aside and the said Crl. Appeal will stand restored to the file of the appellate Sessions Court concerned. The Appellate Court will consider the abovesaid contention of the petitioner and all other submissions and arguments that may be raised by the petitioner and the complainant at the time of hearing of the appeal. 9. Learned counsel appearing for the revision petitioner / accused before the Appellate Court will serve a copy of this judgment to the learned counsel appearing for the complainant before the Appellate Court. Both sides will appear before the appellate Sessions Court at 11 A.M. on 01/07/2017 on which day the Appellate Court will fix up a date for hearing of the appeal which is convenient to both sides and then will endeavour to finally dispose of the appeal without much delay, at any rate, within a period of four months from the date of production of a certified copy of this judgment. With these observations and directions, the Crl. R. P. stands finally disposed of.