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M. KUNHIRAMAN versus M.P. RAMAKRISHNAN

High Court of Kerala

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M. KUNHIRAMAN v. M.P. RAMAKRISHNAN - Crl Rev Pet No. 3911 of 2006 [2006] RD-KL 1918 (27 November 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3911 of 2006()

1. M.KUNHIRAMAN, AGED ABOUT 48 YEARS,
... Petitioner

Vs

1. M.P.RAMAKRISHNAN, AGED 23 YEARS,
... Respondent

2. THE STATE OF KERALA, REPRESENTED BY

For Petitioner :SRI.T.K.VIPINDAS

For Respondent : No Appearance

The Hon'ble MR. Justice K.T.SANKARAN

Dated :27/11/2006

O R D E R

K.T.SANKARAN, J

Crl. R.P. No. 3911 of 2006

Dated this the 27th day of November, 2006

O RDER The petitioner was convicted for the offence under Section 138 of the Negotiable Instruments Act and was sentenced to undergo simple imprisonment for a period of four months. He was also directed to pay a sum of Rs.50,000/- as compensation to the complainant and in default thereof to undergo simple imprisonment for a period of three months. On appeal by the accused, the appellate court confirmed the conviction and sentence and dismissed the appeal.

2. In the manner in which I propose to dispose of the revision, I do not think notice need be issued to the first respondent/complainant. The learned counsel for the petitioner submits that the petitioner is prepared to pay the compensation amount and his only prayer is to grant a reasonable time to pay the same. It is also submitted that the sentence of imprisonment is excessive.

3. Taking note of the facts and circumstances of the case and the nature of the offence and also the submission made by CRRP3911/2006 2 the learned counsel for the petitioner, I am inclined to reduce the sentence of imprisonment till the rising of the court and to grant three months' to pay the compensation amount. In the result, this Crl.R.P. is allowed in part. The conviction is confirmed. The sentence is reduced to imprisonment till the rising of the court. The direction to pay the compensation of Rs.50,000/- and in default of payment of compensation to undergo simple imprisonment for three months is also confirmed. However, the petitioner is granted three months' time to pay the compensation. The petitioner shall appear before the trial court on 20.12.2006 for undergoing the imprisonment till the rising of the court and shall continue to appear as and when directed by the trial court till the compensation amount is paid. The default sentence shall be kept in abeyance for a period of three months. K.T.SANKARAN,

JUDGE

csl CRRP3911/2006 3

? IN THE HIGH COURT OF KERALA AT ERNAKULAM

+Crl MC No. 295 of 2006() #1. SAJAN VARGHESE,
... Petitioner

Vs

$1. SKANDA T. KUMAR,
... Respondent

2. STATE OF KERALA, REP. BY THE

! For Petitioner :SRI.S.RAJEEV

For Respondent :SRI.SUNIL CYRIAC

*Coram

The Hon'ble MR. Justice R.BASANT

% Dated :30/11/2006

: O R D E R

R.BASANT, J.

Crl.M.C.NOS.295 & 3102 OF 2006

Dated this the 30th day of November, 2006.

ORDER

The common petitioner in these two Crl.M.Cs is the 3rd accused in a prosecution under Sections 499 & 500 I.P.C. The complainant/respondent herein complained that a campaign to defame him has been undertaken by the persons responsible for publishing the Mangalam daily. The petitioner is, without any dispute, the Managing Director of the said company and is admittedly the printer and publisher of the said daily. A series of articles/write ups were published against the complainant and it is the case of the complainant that such publication by the persons responsible for effecting such publication amount to the offence of defamation punishable under Section 500 I.P.C. The 1st accused is the Chief Editor, the 2nd accused is the editor and the petitioner herein is the printer and publisher of the said daily. There is a 4th accused who is not named, but who is arrayed as the 4th accused with the description of "The Staff Reporter, Mangalam, Kottayam". Who the staff reporter is, has not been strangely specified in the complaint. The learned Magistrate after following the procedure stipulated by law, has Crl.M.C.NOS.295 & 3102 OF 2006 2 taken cognizance of the offence against all the 4 accused persons. After taking cognizance, accused 2 & 3 have already entered appearance. The 1st accused is no more now, it is submitted. The 4th accused has not entered appearance. As the 4th accused is not any named person, service of summons on the 4th accused caused difficulties. At that stage, the learned Magistrate, it is seen, directed that the summons be handed over to the 3rd accused for service on the 4th accused. The petitioner, the 3rd accused has come before this Court with these Crl.M.Cs complaining about the taking of cognizance against him as also the direction issued to him to serve notice on the 4th accused, a person not specified by name.

2. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this Court in this petition under Section 482 Cr.P.C. Without any dispute, the petitioner is the printer and publisher. His responsibility for publication of the daily is not seriously disputed. Following the decision in Mathew v. Abraham [2002(3) KLT 282(SC)], notwithstanding the fact their Lordships in that case were considering specifically the nature of liability of a Managing Editor, Resident Editor or Chief Editor, I am satisfied that the prosecution against the Crl.M.C.NOS.295 & 3102 OF 2006 3 petitioner, admittedly the printer and publisher of the daily, does not deserve to be quashed at this stage. The petitioner must appear before the learned Magistrate and raise his contentions in the course of trial.

3. Coming to the cognizance taken against the 4th accused, an unspecified individual referred to as the staff reporter only, I find merit in the contention of the learned counsel for the petitioner that post cognizance investigation cannot be and must be frowned upon. The complainant has not specified which individual accused has committed the offence. An office like the "Staff reporter, Mangalam" cannot certainly be prosecuted. The complainant cannot certainly depend upon the services of the petitioner/the 3rd accused after cognizance has taken to identify the individual who had made the questionable report. I am in these circumstances, satisfied that the cognizance taken against the non specified indictee of "Staff reporter" deserves to be quashed. The complainant ought to have taken necessary steps prior to filing of the complaint or at least at the stage of enquiry under Section 202 Cr.P.C to make data available to court to specifically identify the person who is to stand trial as the 4th accused. That has not been done. The Crl.M.C.NOS.295 & 3102 OF 2006 4 cognizance taken against the 4th accused cannot be held to be justified. Though a specific prayer to that effect has not been made in these Crl.M.Cs, I am satisfied that the prosecution against the 4th accused, who remains unidentified and unspecified even now can be quashed under Section 482 Cr.P.C to facilitate early disposal.

4. In the result:

i) Crl.M.C.No.295 of 2006 is dismissed; ii) Crl.M.C.NO.3102 of 2006 is allowed. Cognizance taken against the 4th accused is set aside. I may hasten to observe that the order passed in Crl.M.C.No.3102 of 2006 will not in any way fetter the powers of court at a later stage to take cognizance against any specified individual by invoking the powers under Section 319 Cr.P.C.

4. The learned counsel for the petitioner submits that unnecessary insistence on personal appearance of the petitioner is likely to cause great prejudice, hardship, loss and inconvenience to the petitioner. It is for the petitioner to apply for exemption before the learned Magistrate and I have no reason to assume that the learned Magistrate would not consider such application for exemption on merits and in accordance with Crl.M.C.NOS.295 & 3102 OF 2006 5 law. It has been repeated many times that unnecessary and ritualistic insistence on the personal appearance of an indictee need not be insisted unless sufficient reasons are there and the progress of the case requires such personal appearance of the indictee. In these circumstances, I am satisfied that no specific direction need be issued; but I observe that the petitioner can apply for exemption seeking appropriate orders on merits from the learned Magistrate. R.BASANT

JUDGE

rtr/


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