Sunilkumar. V vs State Of Kerala

Kerala High Court

Sunilkumar. V vs State Of Kerala on 23 May, 2024

Author: K.Babu

Bench: K. Babu

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                      THE HONOURABLE MR.JUSTICE K. BABU
        THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                          OP(CRL.) NO. 182 OF 2024
AGAINST   THE      ORDER/JUDGMENT    DATED   IN   CRMP     NO.1527    OF   2022   OF
JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA
PETITIONER:

            SUNILKUMAR. V
            AGED 51 YEARS
            S/O VISWANATHA PANICKAR, RESIDING AT SUMMER PALACE,
            CHOWARA KARA, CHOWARA VILLAGE, ALUVA TALUK, ERNAKULAM
            DISTRICT, CHOWARA P.O., PIN - 683571
            BY ADV V.N.SUNIL KUMAR


RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031
    2       SHAHI. N.D.
            AGED 50 YEARS
            S/O DIVAKARAN, NEDIYAMBATH HOUSE, HOUSE NUMBER -47,
            FRIENDS NAGAR, PULLAZHY KARA, PULLAZHY VILLAGE,
            THRISSUR TALUK, THRISSUR DISTRICT, PULLAZHY P.O.,
            PIN - 680012
              SRI.G.SUDHEER P.P

     THIS     OP     (CRIMINAL)     HAVING     COME   UP    FOR      ADMISSION    ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CRL.) NO. 182 OF 2024
                                     2

                              K.BABU, J.
                    ------------------------------------
                        OP(Crl).No.182 of 2024
                  --------------------------------------
                Dated this the 23rd day of May, 2024

                          JUDGMENT

The prayers in this OP(Crl.) are as follows:-

"(i) Direct the Judicial First-Class Magistrate Court-1, Aluva, to accept the photocopies of the documents produced and to issue summons to the respondent, if it is in accordance with law in every other details in Crl.M.P.No.1527/2022 pending before that Court.

(ii) Grant such other reliefs to the petitioner, as this Honourable Court may deem appropriate, in the interest of justice."

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Notice to respondent No.2 is dispensed with.

3. The petitioner is the complainant in CRMP No.1527 of 2022 on the file of the Judicial First Class Magistrate Court-I, Aluva. In the complaint, he alleges offence under Section 138 of the NI Act against respondent No.2. It is alleged that respondent No.2 issued a cheque for Rs.11,00,000/- drawn on the State Bank of India, Thrissur in discharge of a legally OP(CRL.) NO. 182 OF 2024 3 enforceable debt, which was dishonoured unpaid due to insufficiency of funds in his account.

4. The learned Magistrate proceeded under Section 200 of Cr.P.C. The petitioner filed an affidavit as provided under Section 145 of the Negotiable Instruments Act. Along with the complaint, the petitioner had produced the photocopy of the cheque. The learned counsel for the petitioner submitted that on 11.07.2022 the learned Magistrate directed the complainant to produce the original cheque. It is submitted that the original cheque and the other relevant documents were misplaced among some other documents. It is submitted that he is not in a position to produce the original cheque and other related documents within a reasonable time.

5. The grievance of the petitioner is that the learned Magistrate is insisting for the production of the original cheque even before taking cognizance of the offence.

6. The specific case of the petitioner is that the original cheque happened to be misplaced among some other documents. The petitioner is taking earnest efforts to locate OP(CRL.) NO. 182 OF 2024 4 the original cheque. The petitioner apprehends that he may not be in a position to locate the original cheque in reasonable time.

7. Therefore, the learned counsel prayed for directing the learned Magistrate to provisionally admit the copy of the cheque as secondary evidence for the time being, till the original is traced out.

8. As per Section 65 (c) of the Indian Evidence Act, when the original of a document has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, secondary evidence is admissible. In the present case, the original of the cheque in question is stated to be misplaced.

9. Therefore, the learned Magistrate is directed to provisionally admit the copy of the cheque in question in the enquiry under Section 200 Cr.P.C. It is made clear that the admissibility of the copy of the cheque is open to challenge by the person arrayed as accused, in case the learned Magistrate OP(CRL.) NO. 182 OF 2024 5 decides to take cognizance of the offence alleged and issue process.

The original petition is disposed of as above Sd/-

K.BABU, JUDGE saap OP(CRL.) NO. 182 OF 2024 6 APPENDIX OF OP(CRL.) 182/2024 PETITIONER EXHIBITS Exhibit - P1 TRUE PHOTOCOPY OF THE CHEQUE DRAWN ON STATE BANK OF INDIA, THRISSUR TOWN, POORNA COMPLEX, M.G.ROAD BRANCH, DATED 07/05/2022 AND BEARING NUMBER 658346 Exhibit - P2 TRUE COPY OF THE MEMO ISSUED FROM ESAF, ALUVA BRANCH INTIMATING DISHONOURING OF THE CHEQUE FOR THE REASON FUNDS INSUFFICIENT DATED 09/05/2022 Exhibit - P3 TRUE COPY OF THE LEGAL NOTICE DATED 17/05/2022 Exhibit - P4 TRUE COPY OF THE POSTAL RECEIPT DATED 17/05/2022 Exhibit - P5 TRUE COPY OF THE PRINTOUT OF ITEM DELIVERY CONFIRMATION OBTAINED FROM INDIAPOST.GOV.IN Exhibit - P6 THE PRINTOUT OF THE CASE HISTORY OF CRL.M.P. NO.1527/2022 OF JUDICIAL FIRST- CLASS MAGISTRATE COURT-1, ALUVA