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Manipur High Court · body

2019 DIGILAW 51 (MAN)

Ragesh Keisham v. Sovelia Akoijam

2019-08-02

RAMALINGAM SUDHAKAR

body2019
ORDER : 1. Heard Mr. Y.M. Lokendro, learned counsel appearing for the petitioner. None appears for the respondent. 2. The civil revision petition has been filed challenging the order dated 28.05.2018 passed by the Session Judge, Imphal West dismissing Criminal Revision Case No. 17 of 2017. 3. Notice was ordered and the case was admitted on 26.07.2018. Registry report dated 25.08.2018 states that step has been taken on the sole respondent. Further Registry report dated 07.09.2018 states that notice returned unserved from the Post Office stating the reason as "name and address not found". 4. Be that as it may, considering the nature of the case, Mr. Y.M. Lokendro, learned counsel appearing for the petitioner proceeded to argue the matter. Therefore, this Court is not inclined to adjourn the matter for non appearance for the respondent. 5. The respondent filed a complaint case being Cril (C) Case No. 381 of 2016 against the present petitioner under section 138 of the Negotiable Instrument Act before the Chief Judicial Magistrate stating that the petitioner issued a cheque which was submitted to the Bank and it was intimated by the Bank that the cheque has been dishonoured. In that complaint case, trial has commenced. At this stage, it is pertinent to point out that along with the complaint, the respondent complainant has filed an affidavit in support of the complaint. 6. At the stage of examination of the accused under Section 313 CrPC, an application, being Cril Misc. Case No. 129 of 2017 has been filed by the petitioner invoking Section 258 CrpC before the Chief Judicial Magistrate Imphal West, to stop further proceeding in Criminal Case No. 381 of 2016. The learned Chief Judicial Magistrate, Imphal West, after hearing the counsel for either side, dismissed the application vide order dated 04.11.2017 against which Criminal Revision Case No. 17 of 2017 was filed before the Court of Sessions Judge, Imphal West Manipur, which again was dismissed on 28.05.2018. Hence the present civil revision petition has been filed before this Court. 7. Before the Chief Judicial Magistrate and also before the Court of Sessions Judge, Imphal West, the petitioner accused pleaded as follows : (1)The complainant has been not examined as witness. Therefore, there is a violation of Section 200, CrPC. (2) The documents marked A to F are Photostat copies. 7. Before the Chief Judicial Magistrate and also before the Court of Sessions Judge, Imphal West, the petitioner accused pleaded as follows : (1)The complainant has been not examined as witness. Therefore, there is a violation of Section 200, CrPC. (2) The documents marked A to F are Photostat copies. Therefore, it is not admissible as per Section 61 of the Indian Evidence Act. (3) The complainant did not have the capacity to lend a sum of Rs.9,75,500/- to the petitioner. Therefore, for all the above stated reasons, the trial should be stopped and the accused be discharged by invoking section 258 CrPC. The same plea is raised before this Court also. Section 258 CrPC reads as follows :- "Section 258. Power to stop proceedings in certain cases.- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge." 8. On the applicable plea of Section 258 CrPC, the learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of M/S Meters and Instruments Private Limited vs. Kanchan Mehta, Criminal Appeal No. 1731 of 2017 decided on 05.10.2017. In that case, the Court, in Para 11, held as follows:- "11. While it is true that in Subramanium Sethuraman Vs. State of Maharashtra, this Court observed that once the plea of the accused is recorded under Section 252 of the Cr.P.C., the procedure contemplated under Chapter XX of the Cr.P.C. has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to 2002 amendment. The statutory scheme post 2002 amendment as considered in Mandvi Cooperative Bank and J.V. Baharuni (supra) has brought about a change in law and it needs to be recognised. The statutory scheme post 2002 amendment as considered in Mandvi Cooperative Bank and J.V. Baharuni (supra) has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 Cr.P.C. which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of the Cr.P.C. are applicable "so far as may be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context." 9. On the power of the Trial Court, to invoke Section 258 CrPC, there cannot be any second opinion in the light of decision of the Supreme Court but the matter is whether the case of the petitioner falls within the parameters for the Court below to invoking Section 258 CrPC. 10. On the power of the Trial Court, to invoke Section 258 CrPC, there cannot be any second opinion in the light of decision of the Supreme Court but the matter is whether the case of the petitioner falls within the parameters for the Court below to invoking Section 258 CrPC. 10. The first issue raised by the petitioner that the complainant was not examined under Section 200 CrPC was rightly rejected by the Court below relying upon section 145 of the Negotiable Instrument Act, 1881 and the decision of the Supreme Court in the case of Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore, (2010) 3 SCC 83 reiterated in case of K.S. Joseph vs. Philips Carbon Black Limited and Another, (2016) 11 SCC 105 , in which it has been held that the requirement of examining the complainant need not be necessary if the evidence has been given by way of an affidavit. Therefore, the first contention was rightly rejected. 11. The second contention of the petitioner is that document marked as A to F are Photostat copies and need not be admissible. The court below has gone through the issue at length and this contention was again rightly rejected placing reliance on Mandvi Cooperative Bank Ltd. vs. Nimesh B. Thakore, (2010) 3 SCC 83 by referring to amended Section 143 to 147 of the Negotiable Instruments Act, 1881. It also relied upon the above decision on admissibility of document. The relevant portion reads as follows : "In Mandvi Co-Opt. Bank Ltd. vs. Nimesh B. Thakore reported in 2010 (3) SCC 83 , the Hon'ble Supreme Court held as follows: "Negotiable Instruments Act, 1881 - Section 145 - Documents along with affidavit - Held - No formal proof is required for enclosed documents along with affidavit. Held - In case, however, the accused raises any objections with regard to the validity or sufficiency of proof of the documents submitted along with the affidavit and if the objections are sustained by the court it is always open to the prosecution to have the concerned witness summoned and get the lacuna in the proof of the documents corrected." 12. The Court below referring to 2002 amendment to Negotiable Instrument Act, held that the proceeding should be summary in nature for early disposal of the case so that the rights of either parties are not affected. The Court below referring to 2002 amendment to Negotiable Instrument Act, held that the proceeding should be summary in nature for early disposal of the case so that the rights of either parties are not affected. The Court below rightly came to the conclusion that objection as regards admissibility of the documents can be agitated in the stage of trial. The provision of Negotiable Instruments Act, 1881 as held by the Apex Court in Mandvi Co-Op. Bank Ltd. (Supra) will have to be considered in this aspect in the trial and the admissibility or otherwise of the document will be considered by the Trial Court. The Trial Court is entitled to sift through the documents on merits. There is no necessity for this Court to cut short the trial. Therefore, there is no ground for invoking Section 258 CrPC and to stop the proceeding. 13. The third last plea raised by the petitioner is that the complainant has no capacity to lend such a huge sum of money, therefore, the proceeding should be stopped relying in the case of K. Subramani vs. K. Damodara Naidu reported in 2015 (1) SCC 99 . In that case, it was held that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is a legally recoverable debt payable by the accused to the complainant. 14. In the case of K. Subramani (Supra), it was held so after a full fledged trial. The judgment of the High Court was reversed by the Supreme Court upholding the Trial Court's judgment. It was not a case where Section 258 CrPC was invoked to stop the proceedings and discharge the accused even before the trial commenced. Therefore, that decision will not apply to the facts of the present case. It is an issue to be considered at the time of trial and not for discharge in terms of Section 258 CrPC. 15. Both the Trial Court as well as the appellate court are justified in declining the plea for invocation of Section 258 CrPC at the threshold when the trial has already commenced and the stage has been set for examination of the accused. The application appears to be ploy to delay the completion of the trial. 16. 15. Both the Trial Court as well as the appellate court are justified in declining the plea for invocation of Section 258 CrPC at the threshold when the trial has already commenced and the stage has been set for examination of the accused. The application appears to be ploy to delay the completion of the trial. 16. In view of the amendment to the negotiable instrument Act, the Court below has to proceed and conclude the trial without undue delay so as to render justice to the parties. The Judicial Magistrate Court as well as appellate Court are correct in declining the application invoking Section 258 Cr.PC in the facts of the present case for the aforesaid reason. 17. Finding no reason, this Civil Revision Petition stands dismissed. 18. Learned counsel for the petitioner states that the case is listed for trial tomorrow and is he is ready to participate in the same. This statement of Mr. Y.M. Lokendro, learned counsel for the petitioner is recorded. 19. A copy of this order be sent to the Court below as an intimation.