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2025 Supreme(Ker) 667
IN THE HIGH COURT OF KERALA AT ERNAKULAM
G.Girish, J.
K.S. Joseph – Petitioner
Versus
State of Kerala, Rep. By Public Prosecutor – Respondent
Crl.MC No. 8590 of 2019, Crl.MC No. 8613 of 2019
Decided On : 24-03-2025
Advocate Appeared:
For the Appellant : BY ADVS.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)
For the Respondent: BY ADVS.SRI.DINESH R.SHENOY FOR R2 SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SHRI.SANGEETHARAJ.N.R, PUBLIC PROSECUTOR
IMPORTANT POINT
The court emphasized the necessity for a reasoned order regarding the requirement of enquiry under Section 202 Cr.P.C. after condoning delay in filing complaints under Section 138 of the Negotiable Instruments Act.
Headnote:
(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 482 - Delay in filing complaints - The learned Magistrate condoned a delay of 62 days in filing complaints without proper consideration of the Supreme Court's directions regarding limitation and enquiry under Section 202 Cr.P.C. - The Supreme Court had previously set aside the Magistrate's cognizance order, directing a fresh consideration of the delay and the necessity of enquiry. (Paras 2 , 3 , 10 , 11 )
(B) Judicial discretion - The court emphasized that the learned Magistrate must provide a reasoned order regarding the necessity of enquiry under Section 202 Cr.P.C. and cannot merely rely on mechanical procedures. (Paras 8 , 11 )
Facts of the case:
The petitions challenge the orders of the Judicial First Class Magistrate condoning a delay in filing complaints under Section 138 of the Negotiable Instruments Act, which were previously set aside by the Supreme Court for lack of due consideration of delay and enquiry requirements.
Findings of Court:
The court upheld the Magistrate's order condoning the delay but set aside the subsequent proceedings, directing a fresh start to determine the necessity of enquiry under Section 202 Cr.P.C.
Issues: The main issues included whether the learned Magistrate properly considered the delay in filing the complaints and the requirement of enquiry under Section 202 Cr.P.C.
Ratio Decidendi: The court ruled that the learned Magistrate must provide a reasoned order regarding the necessity of enquiry under Section 202 Cr.P.C., as the Supreme Court left this question open for determination.
Result: The orders condoning the delay are upheld; however, the proceedings initiated against the petitioner are set aside, and the Magistrate is directed to commence afresh.
ORDER :
G.GIRISH, J.
The orders passed by the Judicial First Class Magistrate-VI, Ernakulam on 12.06.2019 in Crl.M.P.No.28/2016 in C.C.No.1327/2010 and in Crl.M.P.No.29/2016 in C.C.No.1326/2010 are under challenge in these petitions filed under Section 482 Cr.P.C, by the accused in the aforesaid cases.
2. C.C.No.1326/2010 and C.C.No.1327/2010 arose out of a private complaint filed by the second respondent herein alleging commission of offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence in those cases without taking note of the fact that there was a delay of 62 days in the filing of complaints. The petitioner/accused challenged the orders of the learned Magistrate taking cognizance of the offence, by filing Crl.M.C.Nos.2902 and 2903 of 2012 before this Court under Section 482 Cr.P.C. The prayer of the petitioner in the above Crl.MCs to quash the proceedings in these cases, was disallowed by this Court by a common order dated 04.09.2012. The petitioner took up the matter in appeal before the Hon’ble Supreme Court by filing Crl.A.Nos. 247 and 248 of 2016.
3. The Hon’ble Supreme Court, vide judgment dated11.04.2016, set aside the impugned common order of this Court as well as the order of the learned Magistrate taking cognizance of the offence and issuing summons to the accused. In the aforesaid order, the Apex Court directed the learned Magistrate to reconsider the relevant facts of the Complaint Case including the issue of delay and its condonation in accordance with law, as well as the requirement of enquiry etc. under Section 202 of the Cr.P.C., and to pass fresh orders in accordance with law. Thereafter, the matter was again considered by the learned Magistrate who passed the impugned orders in Crl.M.P.No.28/2016 and Crl.M.P.No.29/2016, condoning the delay of 62 days in the filing of complaints in the aforesaid cases. The aforesaid orders are under challenge in these petitions.
4. Heard the learned counsel for the petitioner/accused and the learned counsel for the second respondent/de facto complainant.
5. The impugned orders passed by the learned Magistrate are assailed by the petitioner stating the reason that those orders are not in conformity with the directions of the Hon’ble Supreme Court in the judgment dated 11.04.2016 in Crl.A.Nos.247/2016 and 248/2016. It is contended that, instead of considering the question of taking cognizance of the offence after deciding the challenge against the maintainability of the complaints on the ground of limitation, the learned Magistrate dealt with the question of limitation in a mechanical manner under the presupposition that the cognizance had already been taken. Thus, it is contended that the aforesaid course adopted by the learned Magistrate was against the directions of the Apex Court. The other ground for assailing the orders passed by the learned Magistrate is that the direction of the Apex Court to decide on the question whether there was the requirement of enquiry under Section 202 Cr.P.C, had not been complied.
6. Having regard to the nature of the challenge raised by the petitioner in these petitions, this Court, vide order dated 09.01.2020, directed the Registry to obtain a report from the Judicial First Class Magistrate-VI, Ernakulam on the following matters:
“1) Did the learned Magistrate take fresh cognizance of the offence after condonation of the delay in filing the complaint, as per the order dated 12.06.2019 (or 12.07.2019?), in the cases C.C.Nos.1326/2010 and 1327/2010?
2) If so, did the learned Magistrate consider the question with regard to conducting of enquiry under Section 202 Cr.P.C before taking fresh cognizance of the offence, pursuant to the direction of the Hon’ble Supreme Court in the judgment dated 11.04.2016 in Crl.Appeal Nos.247/2016 and 248/2016?
3) Has the learned Magistrate issued any non-bailable warrant against the accused in the two cases after taking fresh cognizance of the offence, if any?
7.
