Crl.M.C. No.3092 of 2017

14th July, 2017.

Petitioner Counsel: Sri. S. RAJEEV, Sri. V. VINAY, Sri. D. FEROZE, Sri. K.K. DHEERENDRAKRISHNAN
Respondent Counsel: Sri. SAIGI JACOB PALETTY

Cases Cited:
Thanaiya Vs. Balasamy Nadar, (2005) KHC 699 : 2005 (2) KLT 643 [Para 7]
Tomy.T.J. Vs. State of Kerala and another, 2017(2) KHC 841 [Para 7,12]
Mandvi Co-operative Bank Ltd. Vs. Nimesh B Thakur, 2010 ALL MR (Cri) 599 (S.C.)=2010 (3) SCC 83 : 2010 (2) SCC (Cri.) 1 : 2010 (1) KLT 321 (SC) [Para 3,7]

JUDGMENT

JUDGMENT :- The petitioner is the sole accused for the offence punishable under Sec.138 of the Negotiable Instruments Act, instituted on the basis of a complaint preferred by the second respondent herein.

2. The gist of the complaint is that the accused had executed and issued a cheque on 3.1.2004 for an amount of Rs.10,00,000/- and that on the basis of the dishonour of the cheque, the complaint has been initiated for the above said offence, after complying with the requisite formalities. The specific defence taken by the accused is that he was not in India on 3.1.2004 and he was abroad during the relevant period and that the petitioner has preferred Crl.M.C.No.1160 of 2016 to quash all further proceedings in the impugned Annexure-I complaint by placing reliance on the passport. According to the petitioner, he had left India on 6.11.2003 and returned only on 19.7.2005. This Court as per Annexure-II order dated 5.12.2016 had disposed of Crl.M.C.No.1160 of 2016 whereby the said plea of the petitioner was not accepted and a direction was issued to the learned Magistrate to expedite the trial of the case as the evidence had already commenced in the case. The petitioner was co-operating with the trial of the case and that the petitioner himself was examined as DW-1 on affidavit filed in lieu of examination in chief and he was cross-examined by the defence without there being any objection in examination in chief on affidavit filed by the petitioner.

3. It is pointed out that it is only due to the mistake of the counsel for the petitioner, the petitioner was examined in chief on affidavit and the learned Magistrate permitted the petitioner to be examined as a witness under Section 315 of the Code of Criminal Procedure and he was thoroughly cross-examined by defence without there being any objection. When the matter was listed for hearing, learned counsel appearing for the complainant submitted that the evidence of DW-1 cannot be considered as he was examined in chief on affidavit and it is impermissible under Section 145(2) of the Negotiable Instruments Act. Immediately on noting the said mistake committed by his counsel, the petitioner through counsel had filed Annexure-IV application on 28.3.2017 as Crl.M.P.No.25 of 2017 before the learned Magistrate seeking permission to examine the petitioner as witness and record his evidence afresh as his examination in chief is bad in law in the light of the decision reported in Mandvi Co-operative Bank Ltd. v. Nimesh B Thakur reported in 2010 (3) SCC 83 = 2010 (2) SCC (Cri.) 1 = 2010 (1) KLT 321 (SC) : [2010 ALL MR (Cri) 599 (S.C.)]. In the said judgment of the Apex Court it was held that "accused has no right to give his evidence, like complainant, on affidavit". However, learned Magistrate has dismissed Annexure-IV application as per the impugned Annexure-V order dated 10.4.2017 on the ground that accepting the said prayer of the petitioner would amount to reviewing the earlier illegal action in permitting the petitioner to give evidence through proof affidavit and that the criminal court has no power to review its order or judgment, except to correct clerical or arithmetical errors, as per Section 362 of the Cr.P.C.

4. Heard Sri.S.Rajeev, learned counsel appearing for the petitioner/accused and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State.

5. Though service of notice on R2 has been duly completed, there is no appearance for that party.

6. It will be relevant to note the provisions contained in Section 145 of the Negotiable Instruments Act, which provides as follows :

"145. Evidence on affidavit :- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person given evidence on affidavit as to the facts contained therein."

7. The Apex Court has clearly and categorically held in the judgment in Mandvi Co-op. Bank Ltd. v. Nimesh B.Thakore reported in 2010 (3) SCC 83 = 2010 (2) SCC (Cri.) 1 = 2010 (1) KLT 321 (SC) : [2010 ALL MR (Cri) 599 (S.C.)] that the right available to a complainant to adduce evidence by affidavit in lieu of chief examination is not available to an accused in view of the specific provision engrafted in Section 145(1) of the Negotiable Instruments Act. A similar view was earlier taken by the Madras High Court in the judgment in Thanaiya v. Balasamy Nadar reported in (2005) KHC 699 = 2005 (2) KLT 643. The legal principles laid down by the Apex Court in Mandvi Co-op. Bank Ltd.' case [2010 ALL MR (Cri) 599 (S.C.)] (supra) have been reiterated by this Court in the case in Tomy.T.J. v. State of Kerala and another reported in 2017(2) KHC 841.

8. In the instant case, the trial court had permitted the petitioner/accused to adduce evidence as DW-1 through his proof affidavit in lieu of chief examination. Therefore, the action of the learned Magistrate in permitting the petitioner/accused to adduce evidence of DW-1 through proof affidavit in lieu of chief examination was clearly ultravires and illegal. Both the complainant and the accused would agree that the said course of action adopted by the trial court is ultravires. Even the trial court would acknowledge the said aspect in the impugned Annexure-V order. That does not mean that it is the end of the road for the accused to tender defence evidence.

9. Faced with that situation, the petitioner/accused had rightly filed Annexure-IV application before the trial court seeking permission to adduce oral evidence afresh as DW-1. This was rejected by the trial court as per the impugned Annexure-V order on the ground that granting such permission would amount to review his earlier proceedings in permitting the petitioner to adduce evidence through proof affidavit of DW-1/accused in lieu of the chief examination. The impugned Annexure-V order reads as follows :

"This C.M.P. is filed to record the evidence of the accused.

2. No objection is filed to C.M.P.

3. Heard the learned counsel for both sides.

4. The prayer for the accused is that evidence of the accused has been taken on affidavit in lieu of examination in chief which is contrary to the decision of the Hon'ble Supreme Court. However, no objection was raised by either counsel at the time of recording of the evidence.

5. Though on subsequent analysis, the procedure adopted is found not valid, the criminal court has no power of review. In State of Kerala v. Manikantan Nair, AIR 2001 SC 2145, the Hon'ble Supreme Court has held that the criminal court cannot review its order or judgment except for correcting a clerical or arithmetical mistake.

6. In light of the said principle, it is not possible for the court to review its act of accepting the affidavit of the accused in lieu of examination in chief eventhough the procedure was not correct.

Hence, the C.M.P. is dismissed."

10. The said approach made by the trial court in the impugned Annexure-V order is clearly mechanistic, ultravires and illegal. When the trial court was also responsible in the earlier ultravires action of permitting the accused to adduce his evidence as DW-1 through proof affidavit in lieu of the chief examination, the trial court was under a judicial obligation to ensure that such action taken by the trial court should not cause any further prejudice to the accused. The accused has a precious right to shape up his defence strategy in the manner best assessed by him based on the advice that he may receive from his counsel. Therefore, when the accused wants to adduce evidence as DW-1, the same cannot be denied on the specious ground that the earlier proceedings adopted by the trial court in accepting his proof affidavit was illegal and that giving fresh permission to the accused to adduce evidence afresh would amount to review his earlier proceedings, etc. In such a situation, as the earlier course of action and the proceedings taken by the Magistrate in accepting the proof affidavit of DW-1 in lieu of chief examination are clearly ultravires and illegal, it cannot be said that those proceedings would amount to a judicial order which would get the immunity from review as envisaged in Section 362 of the Cr.P.C.

11. Section 362 of the Code of Criminal Procedure reads as follows:

"362. Court not to alter judgment:- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

The bar engrafted in Section 362 of the Cr.P.C. is that after signing the judgment of final order disposing of the case, the criminal court shall not alter or review the same except to correct a clerical or arithmetical error. In the instant case, the action taken by the learned Magistrate in entertaining the proof affidavit of DW-1/accused in lieu of his chief examination cannot be said to be a judicial order as envisaged in Section 362 of the Cr.P.C. and it can only be a proceeding of the trial court which has to be treated as non est and ultravires. In such a situation, the trial court is also duty bound to bear in mind the crucial principle that no mistake of the court shall cause any prejudice to the litigant concerned. Therefore, the trial court was obliged to treat as if the entire proceedings in accepting the proof affidavit of DW-1 in lieu of chief examination and the proceedings in relation to that are non est and ultravires and could have made a note of that in his subsequent proceeding and then the trial court should have permitted the accused to adduce evidence afresh by virtue of the enabling powers conferred under Section 315 of the Cr.P.C.

12. This Court in Tomy.T.J.'s case (supra) had specifically directed that the trial court should return back the affidavit submitted by the accused and should permit the accused to ensure that in case he voluntarily examined himself as a defence witness, then the trial court should allow the defence witness DW-1/accused to tender his oral evidence in terms of Section 315 of the Cr.P.C. The present impugned order in Annexure-V is illegal and ultravires and has caused unnecessary inconvenience to both the complainant and the accused. Such situation could be easily avoided by the trial court by adopting the abovesaid procedure and by disabusing the notion that the earlier proceedings allowing the accused to tender proof affidavit in lieu of chief examination, would be a total bar from him being examined afresh in terms of Section 315 of the Cr.P.C. on the purported ground that it cannot be reviewed due to the bar contained in Section 315 of the Cr.P.C. If the said mechanistic approach of the learned Magistrate is upheld, then it will amount to denying the accused his precious right to defend himself in a criminal trial, which is nothing short of flagrant violation of the "due process" protection of Article 21 of the Constitution of India.

13. In the light of the aforesaid discussion, the impugned Annexure-V order is set aside and the Magistrate will pass necessary orders permitting the accused (DW-1) to adduce oral evidence as DW-1 as envisaged in Section 315 of the Cr.P.C. Necessary action in this regard should be taken by the learned Magistrate without much delay immediately on the production of the certified copy of this order. The proof affidavit submitted by the petitioner/accused as well as all the original documents produced along with the said affidavit shall be retuned back to the counsel for the petitioner/accused to enable him to proceed afresh in terms of Section 315 of the Cr.P.C.

With these observations and directions, the Criminal Miscellaneous Case will stand finally disposed of.

The Registry has noted that defective process was received on 12.6.2017 and so fresh notice could not be sent to R2. The petitioner's counsel assures that the defect will be cured within a day. Notice by registered post was earlier taken on R2/complainant in the same address as shown by him in his Annexure-I complaint. The said notice was returned with the endorsement "left India" and hence, unserved. Since notice was taken out through registered post in the address of the complainant as shown by him in his own complaint, it is only to be ordered that service of notice on that party has been duly completed in view of the statutory presumption arising out of Section 27 of the General Clauses Act, 1897. Hence, it is ordered that service of notice on R2 is completed. P.P. has already taken notice for R1. Hence, service is complete.

Ordered accordingly.