IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 CRL.A.No. 1785 of 2011() ------------------------ ST.864/2005 of JUDL. MAGISTRATE OF FIRST CLASS, NEDUMKANDOM .................... APPELLANT(S): COMPLAINANT ------------------------- JOHN VARGHESE, S/O.VARGHESE, PUTHENPURACKAL VEEDU, KOCHERA KARA, MANTHIPPARA BHAGOM, ANAKKARA VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.MANU TOM SRI.SHYAM ARAVIND RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. RIJO SCARIA, S/O.BABY, VYPPANA VEEDU, ARUNAPURAM P.O., PULAYANNUR VILLAGE, MEENACHIL TALUK - 686 574. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. By P.P. SRI. ROY THOMAS FOR R2. ADV.SRI.MADHU FOR R1 THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl. A. No. 1785 of 2011 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of November, 2011 JUDGMENT Ramkumar, J. This appeal comes up before us on a reference by a learned Judge of this Court (Justice K. Hema) prima facie doubting the dictum laid down in Mathew George V. Jacob (2006(1) KLT 126) which held that the question of identity of an accused person, who issued cheque in a prosecution under section 138 of the Negotiable Instruments Act, 1881, does not arise. 2. Appellant is the complainant in S.T.No.864/2005 on the file of the Judicial Magistrate of the First Class, Nedumkandom. He filed the complaint inter alia on the following allegations:- Accused Rijo Scaria and one Johny Thomas came to the house of the complainant (John Varghese) at Anakkara in Idukki District on 22-5-2005 and borrowed a sum of Rs.2 lakhs. The complainant gave the amount on the undertaking Crl.A.1785/2011 2 that the accused would give him a cheque for the said amount. Subsequently, on 14-6-2005 the complainant went to the house of the accused at Pala along with Johny Thomas referred to above and asked for the cheque which was promised. On that day the accused gave Ext.P1 cheque dated 15-3-2005 drawn on the Kottayam Branch of the H.D.F.C. Bank. On 15-3-2005 itself the complainant presented Ext.P1 cheque before the Cumbummettu Branch of Kuttar Service Co-operative Bank. On 8-4-2005 the collecting branch sent Ext.P3 letter together with Ext.P2 dishonour memo dated 21-3-2005 issued by the drawee bank to the effect that the cheque was dishonoured. Thereupon, the complainant issued Ext.P4 statutory notice dated 19-4-2005 through his lawyer to the accused. Ext.P5 postal receipt shows that the notice was despatched on 20- 4-2005. The notice was received by the accused on 23-4- 2005. The accused issued Ext.P7 reply notice dated 28-4- 2005 raising inter alia the following contentions:- 1) He did not issue any cheque to the Crl.A.1785/2011 3 complainant who is unknown to him and he had no transaction at all with the complainant. 2) Ext.P1 cheque was given by him to one Prakash Kandathil as a security for another transaction. The said transaction was subsequently closed. The complainant has some how or other obtained Ext.P1 cheque and issued Ext.P4 notice. 3. On 12-5-2005 the appellant filed the complaint. On 16-6-2006 particulars of the offence were read over and explained to the accused who pleaded not guilty. The case was thereafter posted for complainant's evidence. The complainant had filed proof affidavit and he was cross- examined on the proof affidavit on 10-11-2006. It is not known as to whether the accused was present before the Magistrate on that day. A photograph was shown to the complainant, examined as PW1, by the defence counsel and he was asked to identify the accused in that photograph. It Crl.A.1785/2011 4 is seen that PW1 pointed out one of the three persons in the said photograph (Ext.D1) whom he suspected as the accused. It was later attempted to be shown by producing Ext.D10 photograph that the accused does not figure among the three persons in Ext.D1 photograph. During the examination of the complainant he had stated that he does not know Prakash Kandathil the person with whom the accused allegedly had the transaction. Thereafter, the successor Magistrate as per judgment dated 24-9-2010 relying on the above testimony of the complainant, examined as PW1, acquitted the accused under section 255 (1) Cr.P.C. It is the said judgment which is assailed in this appeal which was filed after obtaining special leave under section 378(4) Cr.P.C. 4. We heard both sides. 5. The question as to whether the identity of the accused who is the drawer of the cheque, in a prosecution under section 138 of the Negotiable Instruments Act, arises or not is undoubtedly an interesting question. A learned Crl.A.1785/2011 5 Single Judge of this Court in relying on Venugopalan V. Prakasan (1985 KLT 615) had in Mathew George V. Jacob (2006(1) KLT 126) taken the view that the identity of the person who issued the cheque does not arise in a case involving an offence under section 138 of the Negotiable Instruments Act. It is the said verdict of the learned Single Judge which is doubted by another learned Judge who has made the reference. 6. But in this case, it may not be necessary to decide the above question in view of the fact that the impugned judgment itself is unsustainable, in the light of the recent decision of the Apex Court in Nitinbhai Saevatilal Shah and another V. Manubhai Manjibhai Panchal and another (2011 (3) KHC 840 (SC). However, we are constrained to observe that the procedure adopted by the learned Magistrate who initially tried the case does not appear to be proper. It is not clear whether the accused was in the dock when the evidence of PW1 started. We have reason to think that the accused was not in the dock when the defence counsel had Crl.A.1785/2011 6 asked PW1 who was in the witness box to identify the accused in Ext.D1 photograph shown to him. If the accused was in the box, the defence lawyer would not have certainly made such an attempt to get the accused identified from a photograph. If the accused was absent, then necessarily he would have taken permission for personal exemption during trial. Such a person who takes personal exemption during trial has to necessarily undertake before the court that he will not dispute his identity during trial. If that be so, it was not open to the defence counsel to make an attempt to get the accused identified by the complainant by showing a photograph which was not marked in accordance with law. It appears that the accused does not figure among the three persons found in Ext.D1 photograph. This fact is also attempted to be proved by the accused by producing a photograph as Ext.D10 and examining himself as DW1. The whole procedure adopted by the court below was erroneous. 7.But, as stated earlier, we need not delve deeper Crl.A.1785/2011 7 into the matter on merits, since it was the successor Magistrate who disposed of the case by pronouncing the impugned judgment acquitting the accused. Since sub- section (3) of section 326 Cr.P.C. excludes summary trials from the application of section 326(1) Cr.P.C., as per which the successor Magistrate can act on the evidence recorded by his predecessor, the procedure adopted by the Magistrate was illegal. In Nitinbhai Saevatilal Shah's case (Supra) the Supreme Court has held that the cardinal principle of law in criminal trial is that it is the right of an accused that his case should be decided by a Judge who has heard the whole of it and that the successor Magistrate by proceeding under section 326(1) Cr.P.C. in a summary trial would be committing an illegality which vitiate the trial. If that be so, the impugned judgment cannot be sustainable and it is accordingly set aside. As observed by the Supreme Court in the above decision, the present Magistrate will have to conduct a de novo trial of the case in accordance with law. Crl.A.1785/2011 8 This appeal is disposed of accordingly. V.RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE mn.