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2025 DIGILAW 701 (KER)

K. S. JOSEPH v. STATE OF KERALA

2025-03-24

G.GIRISH

body2025
ORDER : G.GIRISH, J. The orders passed by the Judicial First Class Magistrate-VI, Ernakulam on 12.06.2019 in Crl.M.P.No.28/2016 in C.C.No.1327/2010 and in Crl.M.P.No.29/2016 in C.C.No.1326/2010 are under challenge in these petitions filed under Section 482 Cr.P.C, by the accused in the aforesaid cases. 2. C.C.No.1326/2010 and C.C.No.1327/2010 arose out of a private complaint filed by the second respondent herein alleging commission of offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence in those cases without taking note of the fact that there was a delay of 62 days in the filing of complaints. The petitioner/accused challenged the orders of the learned Magistrate taking cognizance of the offence, by filing Crl.M.C.Nos.2902 and 2903 of 2012 before this Court under Section 482 Cr.P.C. The prayer of the petitioner in the above Crl.MCs to quash the proceedings in these cases, was disallowed by this Court by a common order dated 04.09.2012. The petitioner took up the matter in appeal before the Hon’ble Supreme Court by filing Crl.A.Nos. 247 and 248 of 2016. 3. The Hon’ble Supreme Court, vide judgment dated11.04.2016, set aside the impugned common order of this Court as well as the order of the learned Magistrate taking cognizance of the offence and issuing summons to the accused. In the aforesaid order, the Apex Court directed the learned Magistrate to reconsider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law, as well as the requirement of enquiry etc. under Section 202 of the Cr.P.C., and to pass fresh orders in accordance with law. Thereafter, the matter was again considered by the learned Magistrate who passed the impugned orders in Crl.M.P.No.28/2016 and Crl.M.P.No.29/2016, condoning the delay of 62 days in the filing of complaints in the aforesaid cases. The aforesaid orders are under challenge in these petitions. 4. Heard the learned counsel for the petitioner/accused and the learned counsel for the second respondent/de facto complainant. 5. The impugned orders passed by the learned Magistrate are assailed by the petitioner stating the reason that those orders are not in conformity with the directions of the Hon’ble Supreme Court in the judgment dated 11.04.2016 in Crl.A.Nos.247/2016 and 248/2016. 4. Heard the learned counsel for the petitioner/accused and the learned counsel for the second respondent/de facto complainant. 5. The impugned orders passed by the learned Magistrate are assailed by the petitioner stating the reason that those orders are not in conformity with the directions of the Hon’ble Supreme Court in the judgment dated 11.04.2016 in Crl.A.Nos.247/2016 and 248/2016. It is contended that, instead of considering the question of taking cognizance of the offence after deciding the challenge against the maintainability of the complaints on the ground of limitation, the learned Magistrate dealt with the question of limitation in a mechanical manner under the presupposition that the cognizance had already been taken. Thus, it is contended that the aforesaid course adopted by the learned Magistrate was against the directions of the Apex Court. The other ground for assailing the orders passed by the learned Magistrate is that the direction of the Apex Court to decide on the question whether there was the requirement of enquiry under Section 202 Cr.P.C, had not been complied. 6. Having regard to the nature of the challenge raised by the petitioner in these petitions, this Court, vide order dated 09.01.2020, directed the Registry to obtain a report from the Judicial First Class Magistrate-VI, Ernakulam on the following matters: “1) Did the learned Magistrate take fresh cognizance of the offence after condonation of the delay in filing the complaint, as per the order dated 12.06.2019 (or 12.07.2019?), in the cases C.C.Nos.1326/2010 and 1327/2010? 2) If so, did the learned Magistrate consider the question with regard to conducting of enquiry under Section 202 Cr.P.C before taking fresh cognizance of the offence, pursuant to the direction of the Hon’ble Supreme Court in the judgment dated 11.04.2016 in Crl.Appeal Nos.247/2016 and 248/2016? 3) Has the learned Magistrate issued any non-bailable warrant against the accused in the two cases after taking fresh cognizance of the offence, if any? 7. In compliance with the aforesaid direction, the officer holding charge of Judicial First Class Magistrate Court-VI, Ernakulam submitted a report dated 20.01.2020 stating the following particulars: a. As per the case records, the learned Magistrate took cognizance of the offence under Section 138 of the Negotiable Instruments Act on 12.06.2019 i.e the date when the impugned orders were passed. b. Since the cases were being continued under the numbers C.C.No.1326/2010 and C.C.No.1327/2010, fresh numbers were not assigned. b. Since the cases were being continued under the numbers C.C.No.1326/2010 and C.C.No.1327/2010, fresh numbers were not assigned. c. Since the accused had appearance and representation, fresh summons had not been issued pursuant to taking of cognizance. d. The learned Magistrate had conducted enquiry in the delay condonation petitions numbered as C.M.P.Nos.28/2016 and 29/2016 and allowed those applications. e. Before taking cognizance, no enquiry under Section 202 Cr.P.C was conducted. f. After allowing the delay condonation petitions on 12.06.2019, the cases were posted for appearance of accused on 18.06.2019, 29.06.2019, 08.07.2019, 15.07.2019, 09.08.2019, 16.08.2019, 03.09.2019 and 26.10.2019. Since the accused did not turn up in spite of providing sufficient and more opportunities as stated above, warrant was issued against him, and the case was posted to 27.04.2020. 8. The aforesaid report of the Officer-in-charge of the Judicial First Class Magistrate Court-VI, Ernakulam would reveal that the learned Magistrate had considered the issue of bar of limitation in compliance with the direction of the Hon’ble Supreme Court and took cognizance of the offence on the date when the delay condonation petitions were allowed by the impugned orders dated 12.06.2019. The argument advanced by the learned counsel for the petitioner that the delay condonation petitions were allowed mechanically after cognizance having been already taken, cannot be countenanced in view of the discussions in the impugned orders as well as the facts which are discernible from the report of the Officer-in-charge of that court. It seems that the learned counsel for the petitioner is harping upon the point that the impugned orders of the learned Magistrate contain the case numbers C.C.No.1326/2010 and C.C.No.1327/2010 in its preface and hence it is apparent that the learned Magistrate had put the horses behind the cart and took cognizance of the offence before proceeding with the issue of limitation. I am not inclined to accept the above argument of the learned counsel for the petitioner, since a mere technicality of mentioning the earlier case numbers assigned in these cases at the preface of the orders, does not mean that the learned Magistrate had resorted to inverted procedures by embarking upon the issue of limitation upon the cases for which cognizance had already been taken. Therefore, the challenge raised by the petitioners in the above regard is devoid of merit. 9. Therefore, the challenge raised by the petitioners in the above regard is devoid of merit. 9. On going through the impugned orders of the learned Magistrate, it is seen that the reason stated by the second respondent for the delay in filing the complaint, has been dealt with in detail in the said orders. According to the second respondent, the delay in filing the complaints happened since the power of attorney holder of the second respondent company had retired, and the procedural formalities for the appointment of a new power of attorney, took some time. The aforesaid reason for the delay was found by the learned Magistrate to be sufficient cause for not making the complaints within the prescribed period. For arriving at the above finding, the learned Magistrate had relied on the statement tendered by PW1, and documents marked as Exts.P1 and P2 on the part of the second respondent. I find no irregularity or impropriety in the aforesaid finding of the learned Magistrate that there was sufficient cause for not filing the complaints within the prescribed period. Thus, the challenge in the above regard cannot be accepted. 10. Regarding the second challenge of the petitioner about the failure of the learned Magistrate to adopt the procedures under Section 202 Cr.P.C before proceeding against the petitioner, it is seen from the report of the Officer-in-charge of the Judicial First Class Magistrate Court-VI, Ernakulam that the learned Magistrate had not conducted the enquiry under Section 202 Cr.P.C. It is pertinent to note that the Hon’ble Supreme Court did not observe in the judgment dated 11.04.2016 in Crl.A.Nos.247 & 248 of 2016 that the enquiry under Section 202 Cr.P.C ought to have been followed in the instant case. On the other hand, the question of law in the above regard was left open by the Apex Court with a direction to the learned Magistrate to decide on the requirement of enquiry under Section 202 Cr.P.C in the instant case. The relevant portion in paragraph No.10 of the judgment of the Hon’ble Supreme Court is extracted hereunder for easy reference: “10. The relevant portion in paragraph No.10 of the judgment of the Hon’ble Supreme Court is extracted hereunder for easy reference: “10. .......................Since the order of the Magistrate issuing summons is clearly without due application of mind to the issue of delay, we have not gone into the detailed consideration of the correctness of submission based upon Section 202 of the Cr.P.C. and as to whether such requirement of enquiry or investigation is attracted even for offences under the Act. This question of law is therefore left open. But on the ground of non application of mind to the issue of delay and considering that the High Court has passed a summary order without even noticing the contentions advanced on behalf of the appellant, we set aside the impugned order of the High Court as well as the order of cognizance summoning the accused passed by the learned Magistrate. The Magistrate is directed to re-consider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law as well as the requirement of enquiry etc. under Section 202 of the Cr.P.C and pass fresh orders in accordance with law.” ” 11. It is thus clear from the aforesaid order of the Hon’ble Supreme Court that the question whether the enquiry under Section 202 Cr.P.C was required in the present case, was left open to be decided by the learned Magistrate. As the learned Magistrate did not follow the enquiry in the above regard, it has to be taken that the said enquiry was found to be not required. However, it was incumbent upon the learned Magistrate to discuss the above aspect in the orders passed by him, and to state the reasoning for arriving at the finding that the enquiry under Section 202 Cr.P.C was not required in the facts and circumstances of the case. Since the orders passed by the learned Magistrate do not contain the above particulars, it is highly necessary to remand back the case to the court concerned for the commencement of the proceedings from the stage at which the delay in filing the complaints was condoned. Accordingly, I find that the present petitions are to be disposed of with the necessary directions in the above regard. Accordingly, I find that the present petitions are to be disposed of with the necessary directions in the above regard. In the result, both these petitions are disposed of as follows: i) The orders passed by the Judicial First Class Magistrate Court-VI, Ernakulam condoning the delay in filing the complaints, are upheld. ii) The proceedings initiated against the petitioner after the condonation of delay are hereby set aside. iii) The learned Magistrate is directed to commence the proceedings afresh from the stage at which the delay has been condoned, and to decide whether the enquiry under Section 202 Cr.P.C is required in the facts and circumstances of the case, in compliance with the directions of the Hon’ble Supreme Court in the judgment dated 11.04.2016 in Crl.A.Nos.247 & 248 of 2016. iv) The decision in the above regard, as well as the proceedings contemplated thereafter, shall be reflected in a reasoned order to be passed by the learned Magistrate.