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.
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OP(Crl).No.182 of 2024
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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
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
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
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
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
