Chitaranjan Vs. Jayarajan - Court Judgment

Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 49: [j.b.koshy, a.k.basheer & k.p. balachndran, jj] acquisition of part of house or building claim put forward by owner to acquire entire building held, option under section 49(1) is to be made by the owner of the house or building when part of the building is sought to be acquired. once the option is exercised, the collector has no option but to acquire the entire building or withdraw from the acquisition. he has no option to decide whether the option exercised by the owner is genuine or not and the tenant has no role in the same and tenant cannot file a writ petition if the collector accepts the request of the owner under section 49(1). if any question arises whether any land proposed to be taken under the act does or does not form part of the house or building, collector can refer the matter to the court and until decision is taken by the court, collector shall not take possession (second proviso). the reference to the court also is only to limit questions mentioned in second proviso. therefore, collector has no decision making power in this matter once the owner expresses the desire to acquire the entire building when part of the building is acquired. section 49(1) gives power to the owner whose house or building is partly acquired to express his desire to acquire the entire building. the right of option given under section 49(1) is only available to the owner and not anybody including any person interested or occupier tenant. the expression of opinion to acquire the entire building need not be in any particular form, but the expression of his desire should be clear for acquisition of the entire building. the above expression of opinion should be made before passing of the award. the owner of the building has a right to withdraw the option exercised before passing of the award. if the option of the owner to acquire the entire building as provided under section 49(1) is accepted by the land acquisition officer, tenant cannot challenge that decision. if the desire exercised by the owner to acquire the entire building is not acceptable, the only option for the land acquisition officer is to withdraw from the acquisition. -- section 49 (1): acquisition of whole of such house or manufactory or building meaning held, the words whole of such house or manufactory or building includes land in which it is situated. in other words, when entire building is acquired, the land in which the building is situated also has to be acquired by the government; if the owner expresses his opinion only to acquire the building materials excluding the land in which it is situated, it is not an option exercised under section 49(1). - he asserts that the cheques were not produced at the first instance and it is clearly shown that it was not a case of loss of cheques. but such powers ought to be invoked sparingly and in exceptional cases.orderr. basant, j.1. in these revision petitions the very same petitioner/complainant assails the dropping of criminal proceedings initiated by him against the very same common respondent/accused in respect of two cheques under section 138 of negotiable instruments act, 1881. the petitioner/complainant alleged that the respondent/accused had issued two cheques each for rs. 35,000/- with different dates for the discharge of a legally enforceable debt/liability. the cheques were dishonoured on the basis of stop memos issued by the accused. notices of demand were issued. but they did not succeed in securing payments. it was stated in reply that the cheques for the specified amount were actually issued but they were not issued for the discharge of any legally enforceable debt/liability. the complainant came to the court alleging the commission of the offence punishable under section 138 of n.i.act. according to the complainant he had brought the original cheques to the court at the time of filing the complaints and the court had permitted him to keep originals leaving the photostat copies in the court. this submission is strenuously disputed by the learned counsel for the respondent. whatever that be, in court only copies of the cheques were left. when the matter came up for trial the complainant submitted that the original cheques were lost and a crime had been registered in respect of such loss of cheques. the complainant was examined in part and the court directed him to produce the original cheques. as he could not produce the cheques, the complainant filed affidavit to explain the circumstances under which he was not able to produce the cheques. thereupon the learned magistrate without proceeding further, invoking his powers under the decision reported in k.m. mathew v. state of kerala, 1992 (1) klt p.1, proceeded to pass the impugned common orders directing discontinuance of the proceedings.2. the respondent/accused has entered appearance. the learned counsel for the petitioner submits that there is no dispute between the parties about the facts of issue of cheques and their dishonour etc. the cheques were actually lost. in these circumstances the complainant is not in a position to produce the cheques. the counsel submits that the complainant is in these circumstances entitled to adduce secondary evidence about the cheques. as per section 65 of the evidence act such secondary evidence is admissible also. the learned magistrate erred grossly in not giving such an opportunity and in terminating the proceedings. it is in these circumstances prayed the impugned order may be set aside.3. the learned counsel for the respondent submits that the theory of loss of cheques is unacceptable. he asserts that the cheques were not produced at the first instance and it is clearly shown that it was not a case of loss of cheques. it is in these circumstances submitted that the impugned order does not warrant interference.4. i have considered the submission. i have gone through the records. i am of the opinion that the court below was certainly wrong in prematurely dropping/ discontinuing further proceedings against the accused in the two cases. the decision reported in 1992 (1) klt 1 does, of course, clothe a criminal court to discontinue the proceedings de hors the provisions of the code of criminal procedure. but such powers ought to be invoked sparingly and in exceptional cases. if really as a matter of fact, the cheques are lost it would be improper and incorrect to deny the complainant an opportunity to substantiate his grievance by adducing secondary evidence as permitted under section 65 of evidence act. i make it clear that i have not intended to express any opinion on the question whether such secondary evidence can be acted upon or not. that is of course, for the court below to consider at the appropriate stage. at any rate, premature discontinuance of the proceedings was, certainly incorrect and improper. the challenge succeeds.5. in the result,a) these criminal revision petitions are allowed.b) the learned magistrate is directed to continue the proceedings and dispose of c.c. 132/93 and c.c. 151/93 as expeditiously as possible.c) the parties are directed to appear before the learned magistrate on 28.4.2003 to continue the proceedings.

Judgment:
ORDER

R. Basant, J.

1. In these Revision Petitions the very same petitioner/complainant assails the dropping of criminal proceedings initiated by him against the very same common respondent/accused in respect of two cheques under Section 138 of Negotiable Instruments Act, 1881. The petitioner/complainant alleged that the respondent/accused had issued two cheques each for Rs. 35,000/- with different dates for the discharge of a legally enforceable debt/liability. The cheques were dishonoured on the basis of stop memos issued by the accused. Notices of demand were issued. But they did not succeed in securing payments. It was stated in reply that the cheques for the specified amount were actually issued but they were not issued for the discharge of any legally enforceable debt/liability. The complainant came to the Court alleging the commission of the offence punishable under Section 138 of N.I.Act. According to the complainant he had brought the original cheques to the Court at the time of filing the complaints and the Court had permitted him to keep originals leaving the photostat copies in the Court. This submission is strenuously disputed by the learned counsel for the respondent. Whatever that be, in Court only copies of the cheques were left. When the matter came up for trial the complainant submitted that the original cheques were lost and a crime had been registered in respect of such loss of cheques. The complainant was examined in part and the Court directed him to produce the original cheques. As he could not produce the cheques, the complainant filed affidavit to explain the circumstances under which he was not able to produce the cheques. Thereupon the learned Magistrate without proceeding further, invoking his powers under the decision reported in K.M. Mathew v. State of Kerala, 1992 (1) KLT P.1, proceeded to pass the impugned common orders directing discontinuance of the proceedings.

2. The respondent/accused has entered appearance. The learned counsel for the petitioner submits that there is no dispute between the parties about the facts of issue of cheques and their dishonour etc. The cheques were actually lost. In these circumstances the complainant is not in a position to produce the cheques. The counsel submits that the complainant is in these circumstances entitled to adduce secondary evidence about the cheques. As per Section 65 of the Evidence Act such secondary evidence is admissible also. The learned Magistrate erred grossly in not giving such an opportunity and in terminating the proceedings. It is in these circumstances prayed the impugned order may be set aside.

3. The learned counsel for the respondent submits that the theory of loss of cheques is unacceptable. He asserts that the cheques were not produced at the first instance and it is clearly shown that it was not a case of loss of cheques. It is in these circumstances submitted that the impugned order does not warrant interference.

4. I have considered the submission. I have gone through the records. I am of the opinion that the Court below was certainly wrong in prematurely dropping/ discontinuing further proceedings against the accused in the two cases. The decision reported in 1992 (1) KLT 1 does, of course, clothe a criminal court to discontinue the proceedings de hors the provisions of the Code of Criminal Procedure. But such powers ought to be invoked sparingly and in exceptional cases. If really as a matter of fact, the cheques are lost it would be improper and incorrect to deny the complainant an opportunity to substantiate his grievance by adducing secondary evidence as permitted under Section 65 of Evidence Act. I make it clear that I have not intended to express any opinion on the question whether such secondary evidence can be acted upon or not. That is of course, for the Court below to consider at the appropriate stage. At any rate, premature discontinuance of the proceedings was, certainly incorrect and improper. The challenge succeeds.

5. In the result,

a) These criminal Revision Petitions are allowed.

b) The learned Magistrate is directed to continue the proceedings and dispose of C.C. 132/93 and C.C. 151/93 as expeditiously as possible.

c) The parties are directed to appear before the learned Magistrate on 28.4.2003 to continue the proceedings.