RASHEED C.M v. STATE OF KERALA

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 SHARAD NAIR MUNDARATH, AGED 50 YEARS S/0 SASHI KUMAR, 4C, VANSHIKA, APPARTMENTS, PANAMPILLY NAGAR LINK ROAD, KADAVANTHARA P.O., KOCHI, PIN - 682020 BY ADV MANU ROY THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

05.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC NO. 11364 OF 2023 2 K.BABU, J. ------------------------------------ Crl.M.C..No.11364 of 2023 -------------------------------------- Dated this the 5th day of January, 2024 O R D E R The prayers in this criminal M.C. are as follows:- “(i) Quash all further proceedings in C.C.No.940/2021 on the files of the ACJM (E.O), Ernakulam as it is an abuse of process of law and (ii) Quash the order dated 19.12.2023 in CMP No.7912/2023 in C.C. No.940/2021 on the files of the ACJM (E.O), Ernakulam as it is violative of the right to fair trial and in the interest of justice.”

2. Heard the learned counsel for the petitioner and the learned counsel appearing for respondent No.2.

3. The learned counsel for the petitioner confines the reliefs to the challenge to Annexure-V order. The petitioner is the accused in C.C. No.940 of 2021 on the file of the Additional Chief Judicial Magistrate (E&O), Ernakulam. He is alleged to have committed an offence punishable under Section 138 of the Negotiable Instruments Act.

4. The case of the complainant is that the accused in discharge of a legally enforceable debt executed the cheque in CRL.MC NO. 11364 OF 2023 3 question for a sum of Rs.11,60,000/-. (Rupees Eleven Lakhs Sixty Thousand only) in favour of him.

5. The defence raised by the accused is that the complainant agreed to invest in the business of pre-owned cars and transferred a sum of Rs.11,60,000/- to him, and utilizing the same a car bearing Reg.No.KL.39-N-48 Creta was purchased from one Mr.Joby Thomas, (DW2). The further case of the accused is that while investing in the business, the complainant insisted for a blank cheque and he handed over a blank cheque bearing No.123721 drawn on the Federal Bank Ltd. Lulu Mall Branch, Kochi, to the complainant which was later misutilised by him for initiating the prosecution.

6. During the trial, the complainant, gave evidence as PW1. On the side of the complainant the Manager of the Bank was examined as PW2.

7. On the side of the defence, the accused and two other witnesses were examined. While cross examining the complainant, the accused set up the defence that the vehicle involved in the transaction had been returned to the complainant, and thereafter, the wife of the complainant Smt. CRL.MC NO. 11364 OF 2023 4 Gowri Sharad sold the said vehicle to one Mr.Firoz Muhammed (DW3) and realized the sale consideration for and on behalf of the complainant. The sum and substance of the defence of the accused is that no amount is due to the complainant.

8. In order to establish the defence version, the original owner of the vehicle Mr.Joby Thomas and the person who allegedly purchased the vehicle from the wife of the complainant, Sri.Firoz Muhammed were examined as DW2 and DW3 respectively. In order to establish the contention of the accused that there was a transaction in respect of the vehicle involved through the Bank, copy of the statement of account maintained by DW3 with ICICI Bank, Kuravilangadu was marked as Ext.D3 subject to proof.

9. The defence evidence was closed and the case was posted for hearing on 18.12.2023.

10. The accused filed CMP.No.7912/2023 under Sections 311 and 254 Cr.P.C. seeking to summon the Manager of ICICI Bank Kuravilangadu for proving Ext.D3..

11. The Trial Court dismissed the application on the ground that the attempt of the accused is to protract the CRL.MC NO. 11364 OF 2023 5 proceedings and the alleged transactions are between third parties and that it has no connection with the dispute in the case.

12. The learned counsel for the petitioner would contend that proving Ext.D3 by procuring certification under Section 65- B of the Indian Evidence Act is highly required to establish his defence and it is further submitted that if no opportunity is given to the accused to prove Ext.D3, it would cause prejudice to the accused.

13. The learned counsel for respondent No.2 resisted the petition and contented that the attempt of the petitioner is only to prolong the matter. The learned counsel submitted that no purpose would be served in deciding the lis by proving Ext.D3 as the transaction referred to therein is between third parties.

14. The petitioner faces prosecution under Section 138 of the Negotiable Instruments Act. When the execution of a cheque is proved a mandatory presumption is drawn in favour of the complainant under Section 139. The presumption is rebuttable. An accused facing prosecution under Section 138 of the Negotiable Instruments Act is entitled to lead evidence to CRL.MC NO. 11364 OF 2023 6 get the mandatory presumption rebutted. This is a case where Ext.D3, which according to the accused is a crucial document to establish his case, has been marked subject to proof. As per Section 254 (1) Cr.P.C., during the trial, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. If the petitioner /accused is denied of the opportunity to prove Ext.D3, which was already marked, would be a denial of fair trial.

15. I am concious of the fact that the trial court has recorded that the accused was given sufficient opportunity to give evidence in the defence. This is a prosecution which commenced in the year 2021. Ext D3 was marked on

13.12.2023 subject to proof and on 18.12.2023 the learned Magistrate closed the evidence. It is seen that the petitioner filed an application seeking reopening the evidence and to summon the witness sought to be examined on the same day itself. CRL.MC NO. 11364 OF 2023 7

16. Having regard to the nature of the defence set up by the accused, I feel that he should be given an opportunity to prove Ext.D3.

17. Resultantly , Annexure-V order dated 19.12.2023 stands set aside. CMP.No.7912 of 2023 is allowed. The trial court shall issue summons to the Manager, ICICI Bank, Kuravilangadu Branch. It is made clear that the trial court shall not permit the examination of any more witnesses. The petitioner shall pay Rs.2,500/- as costs to the complainant. The trial court shall dispose of the matter within a period of one month from this day. The Crl.M.C. is disposed of as above. Sd/- K.BABU, JUDGE CRL.MC NO. 11364 OF 2023 8 APPENDIX OF CRL.MC 11364/2023 PETITIONER ANNEXURES Annexure-I Annexure-II Annexure-III Annexure-IV Annexure-V //True copy//PA to Judge THE TRUE COPY OF THE COMPLAINT IN C.C NO.940/2021 ON THE FILES OF THE ACJM (E.O), ERNAKULAM THE CERTIFIED COPY OF THE IMPUGNED CHEQUE NO.101123721 MAINTAINED WITH FEDERAL BANK BY PROPRIETARY CONCERN BY NAME AND STYLE 'EXECUTIVE CARS' THE CERTIFIED COPY OF THE LAWYERS' NOTICE DATED 03.09.2021 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT, THROUGH HIS LAWYER THE TRUE COPY OF THE CMP NO.7912/2023 IN C.C NO.940/2021 BEFORE THE ACJM (E.O), ERNAKULAM THE CERTIFIED COPY OF ORDER DATED 19.12.2023 IN CMP NO.7912/2023 IN C.C NO.940/2021 ON THE FILES OF THE ACJM (E.O), ERNAKULAM