FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT –where the husband has not satisfactorily explained his failure to comply with the Family Law Rules 2004 (Cth) – where there is an arguable case on appeal – where the wife will suffer prejudice if the appeal is reinstated and the husband serious consequences if it is not – where the interests of justice require that the application is granted – appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife seeks costs in the sum of $1,750 – where the costs are sought to be reserved – where there is no basis on which to reserve the question of costs – husband to pay the wife’s costs in the amount sought.

Jamine & Jamine [2012] FamCAFC 2 (23 January 2012)

Last Updated: 30 January 2012

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE

[2012] FamCAFC 2

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT –where the husband has not satisfactorily explained his failure to comply with the Family Law Rules 2004(Cth) – where there is an arguable case on appeal – where the wife will suffer prejudice if the appeal is reinstated and the husband serious consequences if it is not – where the interests of justice require that the application is granted – appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife seeks costs in the sum of $1,750 – where the costs are sought to be reserved – where there is no basis on which to reserve the question of costs – husband to pay the wife’s costs in the amount sought.

Family Law Act 1975 (Cth) – s 94(2D) and (2F), s 117(2) Family Law Rules 2004 (Cth) – r 22.13(2) and (3), r 22.57

Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow [2010] FamCAFC 100; (2010) FLC 93-441 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Jamine

RESPONDENT:

Ms Jamine

FILE NUMBER:

MLC

3286

of

2008

APPEAL NUMBER:

SOA

73

of

2011

DATE DELIVERED:

23 January 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 January 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 September 2011

LOWER COURT MNC:

[2011] FamCA 792

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Matta

SOLICITOR FOR THE APPLICANT:

Bowlen Dunstan & Associates Pty

COUNSEL FOR THE RESPONDENT:	Mr Forster
SOLICITOR FOR THE RESPONDENT:	Slater & Gordon

ORDERS

(1) The Notice of Appeal filed on 17 October 2011 be reinstated.
(2) The husband file and serve a draft appeal index within 14 days of the date hereof.
(3) Upon compliance with paragraph 2 hereof the Regional Appeal Registrar list the Notice of Appeal for a directions hearing.
(4) The husband pay costs thrown away fixed in the sum of $1,750 to the solicitors for the wife on behalf of the wife within 28 days of the date hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamine & Jamine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act (1975) (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 73 of 2011
File Number: MLC 3286 of 2008

Mr Jamine

Applicant

And

Ms Jamine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application in an appeal filed on 12 December 2011 by the husband in these proceedings. The application seeks orders that the Notice of Appeal filed by the husband on 17 October 2011 be reinstated and that the husband file a draft appeal index within such time as the Court deems fit.
2. The Notice of Appeal filed on 17 October 2011 was against orders made by Cronin J on 19 September 2011.
3. The appeal was taken to be abandoned on 14 November 2011 pursuant to Rule 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”). The husband failed to file a draft appeal index as required by Rule 22.13(2) within 28 days after the filing of the Notice of Appeal.
4. The application is opposed by the wife.

RELEVANT STATUTE LAW AND RULES

5. Rule 22.13 provides:

(2) The appellant must file a draft index to the appeal book within:

(a) 28 days after:

(i) filing the Notice of Appeal; or

(ii) the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or

(b) if the court extends the period mentioned in paragraph (a) -- the period ordered by the court.

(3) If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned. (Emphasis added)

6. Section 94 of the Family Law Act 1975 (Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court.
7. Section 94(2D) provides:

(2D) Applications of a procedural nature, including applications:

...

(c) to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

...

(g) to reinstate an appeal dismissed under a provision of the Rules of Court; or

...

may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

8. Section 94(2F) provides:

(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

APPLICABLE PRINCIPLES

9. In the case of Bemert & Swallow [2010] FamCAFC 100; (2010) FLC 93-441, the Full Court considered in some detail the relevant principles to be applied where there is an application to reinstate an appeal. Significantly, the Full Court concluded at paragraph 154:

... in our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.

10. It was identified in Bemert & Swallow though that the principles applicable to the determination of an application for an extension of time, as set out, for example, in the oft-cited judgment of McHugh J in Gallo v Dawson (1990)
    [1990] HCA 30; 93 ALR 479 apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said at 480:

The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: seeAvery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

See also Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.

11. Thus, the fundamental issue is whether reinstatement of the appeal is necessary to enable the Court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant timeframe, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent that cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.

DISCUSSION

12. As to the relevant factors in this case, those that have been identified and in respect of which submissions were made by both counsel are, firstly whether there are adequate reasons provided by the husband to explain his failure to comply with the relevant timeframe, secondly whether there is a substantial issue to be raised on appeal, and thirdly the consequences for the parties of the grant or refusal of the application.

Adequate explanation

13. In order to appreciate the issue here, I need to initially set out the sequence of events as follows:
    1. Cronin J delivered his reasons for judgment and made the order sought to be appealed against on 19 September 2011.
    2. The husband filed his Notice of Appeal against this order on 17 October 2011.
    3. On 18 October 2011 a letter was sent to the husband’s solicitors by the acting Regional Appeal Registrar returning the stamped copy of the Notice of Appeal for service and setting out in detail what the husband then needed to do in order to progress the appeal, including filing a draft index to the appeal books within 28 days of the filing of the Notice of Appeal. Significantly the letter indicated that the 28 day period expired on
       14 November 2011 and that failure to file the draft index by close of business on that day would result in the appeal being deemed abandoned.
    4. The husband failed to file a draft appeal index by 14 November 2011.
    5. By letter dated 16 November 2011 the Regional Appeal Registrar informed the solicitors for the husband and the solicitors for the wife that as a draft index had not been filed the appeal was taken to be abandoned. The letter included advice as to the relevant section of the Act allowing for an application for reinstatement of the appeal.
    6. On 12 December 2011 the husband filed his application in an appeal seeking an order that the appeal be reinstated.
    7. By letter dated 22 December 2011 the solicitors for the husband forwarded to the Regional Appeal Registrar a draft index to the appeal books. However, given that the appeal was deemed abandoned this draft index was not filed.
14. The husband filed an affidavit on 12 December 2011 in support of the application and that affidavit and the annexures thereto comprises the evidence of the husband in relation to the question of reinstatement. The affidavit is quite brief and reads as follows:

1. That I am the Appellant in these proceeding (sic).

2. Annexed hereto and marked with the letters “GJ 1” is a true copy of correspondence forwarded by this Court to my legal practitioner dated 16 November 2011.
3. I was overseas at the time and did not receive an email from my legal practitioner enclosing the correspondence. I was unaware as to the existence of the correspondence until I received a further email from my legal practitioner on 22 November 2011 together with the letter from this Court dated 16 November 2011 advising that my Appeal had been taken to be abandoned as a draft Index had not been filed.
4. I am in the process of obtaining a transcript of the proceedings and will have Appeal Index filed once I have obtained the transcript.
15. The annexure marked with the letters “GJ 1” to this affidavit comprises the two letters referred to above dated respectively 18 October 2011 and 16 November 2011.
16. In his oral submissions at the hearing the husband’s counsel explained that on the basis of this affidavit the husband’s reason for not complying with the Rules was that he was overseas and did not receive an email from his solicitor enclosing the letter of 18 October 2011, and he remained unaware of this correspondence until he did receive an email from his solicitor on
    22 November 2011 enclosing the letter dated 16 November 2011.
17. I consider this to be an inadequate explanation of the husband’s failure to file a draft appeal index within the time required by the Rules. There is no evidence whatsoever as to the period of time when the husband was overseas, nor as to where he was, and none of the emails from his solicitors are annexed. It is apparent that he was still in Australia on 17 October 2011 because on that day he personally filed the Notice of Appeal in the Regional Appeal Registry and his signature appears on that Notice of Appeal. Significantly though no evidence is presented by the husband as to whether he was back in Australia or still overseas at the time when the draft appeal index was due to be filed, namely on 14 November 2011.
18. The husband was represented at the hearing before Cronin J, and when
    his Honour delivered his reasons for judgment and made the order which the husband seeks to appeal. Thereafter it is apparent from the documents that are before me that the same firm of solicitors continued to represent the husband during all relevant periods thereafter. However, there was no evidence from the husband’s solicitors as to any advice that they may have given him in relation to the appeal and the requirements under the Rules including in particular the filing of a draft appeal index.
19. The submission of the counsel for the husband became in effect that because the husband was not aware of the letter from the Court dated 18 October 2011 that provides an adequate explanation for the failure to comply with the Rules. I reject this submission. The onus is not on the Court to inform the husband of the requirements under the Rules. The Rules are in place and the onus is on the husband to inform himself of his responsibilities under those Rules. In any event, it must not be forgotten that the husband was legally represented at all relevant times.
20. It is also relevant to consider the actions by the husband following his alleged realisation on 22 November 2011 that he was then out of time. It is apparent that he instructed his solicitor to file the application that is now before me, and that was done on 12 December 2011, and then on 22 December 2011 his solicitor forwarded a draft appeal index to the Court. Thus, there is no inordinate delay there. However, that does not take anything away from the circumstance that the husband has not satisfactorily explained his failure to comply with the Rules in the first place.

The merits of the appeal

21. It is not possible for me to be definitive in assessing the merits of the appeal. I have limited documentation, namely, the reasons for judgment of the trial judge and the Notice of Appeal filed by the husband. I do not have the full range of documentation that would be before the Full Court hearing the appeal. For example, the Full Court would have the benefit of the transcript of the hearing before the trial judge, as well as all of the documents that were before the trial judge and summaries of arguments from the parties. Thus, I am simply not able to assess in any depth the merits of the appeal and my analysis must necessarily be limited to the documentation that I do have together with the oral submissions of the parties.
22. In these circumstances, the only question for me is whether there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success then that is enough. In this regard this exercise is somewhat similar to the exercise required in determining an application for summary judgment, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail then subject to where the justice of the case lies, the appeal should be allowed to proceed.
23. The order sought to be appealed against provided that “the husband pay the wife’s costs thrown away this day fixed in the sum of $7,500 (subject only to the question of whether counsel for the wife obtains a brief for 20 September 2011)”. The grounds of appeal set out in the Notice of Appeal are as follows:
    1. The Honourable Judge erred in the exercise of his discretion to award costs to the respondent.
    2. The Honourable Judge erred in fact/law when he held that “there is a small, and it is a very small amount of evidence to indicate that he was unable to travel” in view of the medical certificate dated 14.09.11 [enclosed] which clearly stated that the appellant was unable to travel at the material time.
24. His Honour’s order was made in circumstances where the trial was listed to commence on 19 September 2011 but the husband made an application through his counsel to delay the commencement of the hearing for 48 hours to enable the husband to be present. The husband was overseas at the time and a medical certificate dated 14 September 2011 was presented to the trial judge which certified that because of his medical condition he would not be able to travel either locally or internationally for at least seven days. The trial judge granted the husband’s application but ordered him to pay the wife’s costs thrown away as a result of the delay to the commencement of the trial.
25. In effect the complaint on appeal is that his Honour erred in the exercise of his discretion and in particular in finding that “there is a small, and it is a very small amount of evidence to indicate that [the husband] was unable to travel”. It is said that the medical certificate spoke for itself and provided more than sufficient evidence of the husband’s inability to travel and his Honour should have accepted that. It is further put that his Honour took into account irrelevant considerations namely that there was no evidence presented by the husband as to whether there were other methods by which he could still travel to Australia despite his medical condition. Given the limitations referred to above in assessing the merits of this appeal, and the low threshold that I have to apply, I am persuaded that despite considerable shortcomings in the grounds of appeal, there is an arguable case on appeal. Indeed, counsel for the wife in his submissions conceded that there was “a weak case”. Frankly though that is all that is required; in other words it cannot be said that the appeal is demonstrably hopeless or doomed to fail.

The consequences of the granting or refusal of the application

26. If the application is granted, the appeal will be reinstated and the wife will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the wife given that currently the appeal is deemed abandoned and the wife has therefore been able to ignore the same. Although it has not been formally dismissed, it will not be listed for hearing in the way that appeals usually are.
27. If the application is refused, then the husband will not be able to pursue his appeal, and significantly there is no appeal from a refusal to grant an application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise and may not of course be warranted in this case. In any event though this is a serious consequence for the husband if his application is refused.

CONCLUSION

28. As the authorities recognise, the Court’s consideration of the relevant factors here informs the Court in determining the fundamental issue, namely where the justice of the case lies. Here, despite there being an inadequate explanation for the failure to comply with the Rules and file a draft appeal index within time it is apparent that there is an arguable case on appeal, and there would be serious consequences for the husband if the appeal is not reinstated, and thus the interests of justice require that the application be granted.

COSTS

29. At the conclusion of the hearing I sought submissions as to costs.
30. The counsel for the wife sought an order for costs regardless of the result with such costs being fixed in the sum of $1,750.
31. Counsel for the husband indicated that his client would not be able to oppose an order for costs being made in the event of the application being dismissed, but curiously he indicated that if the application was successful then the question of costs should be reserved. I say curiously because I do not understand this submission and Mr Matta was not able to better explain it during the course of the hearing.
32. In my view there is no basis to reserve the question of costs and I propose to determine the application made by the wife.
33. In the words of s 117(2) of the Act, I consider that there are circumstances here that justify an order for costs being made. Although the application has been successful, the application was only necessary because of the failure by the husband to comply with the Rules, and of course I have found that he has provided an inadequate explanation for that failure. In the circumstances the wife was entirely justified in opposing the application and she should have her costs. Applications such as these necessarily seek an indulgence from the Court in circumstances where the need for the application results from the conduct of the applicant.
34. In terms of the amount sought by the wife, I consider the same to be reasonable in the circumstances, and indeed Mr Matta did not seek to challenge that amount.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
23 January 2012.

Associate:

Date: 23 January 2012

Delay in filing complaint of cheque bounces = But the acknowledgment card evidencing the receipt of the notice by the accused was not received by the petitioner and he has preferred complaints before the postal authorities and made personal enquiries also. He obtained a letter on 16/4/2005 from the Manager, Customer Care center, Ernakulam whereby he was informed that the matter is being enquired into. Subsequently, he persuaded the matter through his lawyer by filing complaint on 04/05/2005 to the Senior Superintendent of Post Offices, Ernakulam. Then on 28/5/2005, he received a letter from the Customer Care centre, Ernakulam that the registered letter issued to the accused was delivered on 01/03/2005. After receipt of information from the postal authorities that the notice was delivered to the accused on 01/03/2005 which was intimated to the complainant only on 28/5/2005, the complaint was filed before the concerned court on 02/06/2005 along with petition to condone the delay. 4. As per the proviso to Section 142(b) of the N.I.Act which was inserted by Act 55 of 2002 came into effect from 06/02/2003, cognizance of a complaint under Section 138 of the Negotiable Instruments Act may be taken by the court even after Crl.R.P.No.2043/2005 3 the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making the complaint within the period specified in Section 142(b). In the present case sufficient reasons for the delay in filing the complaint were specifically stated by the petitioner in the affidavit filed in support of the petition. But the learned Chief Judicial Magistrate mistakenly overlooked the reasons stated therein and also the amended provisions of Section 142(b). It is not proper rather justifiable to dismiss the complaint for the fault on the part of the postal department and without any willful default on the part of the petitioner/complainant.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 2043 of 2005()


1. KARUNAKARAN, S/O. VELU,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA,
                       ...       Respondent

2. SUNILKUMAR, S/O. KUMARAN,

                For Petitioner  :SRI.P.N.SUKUMARAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :22/06/2011

 O R D E R
                            M.C.HARI RANI, J
                            * * * * * * * * * * * *
                     Crl.R.P.No.2043 of 2005
                    ----------------------------------------
               Dated this the 22nd day of June 2011

                               O R D E R

      Petitioner  in    Crl.M.P.No.2678/2005                is the revision

petitioner. That petition was filed to condone the delay of 46

days in lodging the complaint. The complaint was filed under

Section 138 of the Negotiable Instruments Act. The learned

Chief Judicial Magistrate, Ernakulam dismissed the petition as

per order dated 08/07/2005. That order is challenged by the

revision petitioner by filing this revision petition.

      2.    Heard the learned counsel for the revision petitioner

and the learned Public Prosecutor.

      3.    The learned counsel for the revision petitioner

contended that the reasons for the delay in filing the complaint

were properly explained by the petitioner in the affidavit filed in

support of the petition which were not considered by the learned

Magistrate in a proper perspective which lead to miscarriage of

justice. It was sworn in the affidavit that after the receipt of the

dishonoured memo from the bank, he send a registered notice to

the accused on 26/2/2005 through the Head Post Office,

Crl.R.P.No.2043/2005             2


Ernakulam.        But the acknowledgment card evidencing the

receipt of the notice by the accused was not received by the

petitioner and he has preferred complaints before the postal

authorities and made personal enquiries also. He obtained a

letter on 16/4/2005 from the Manager, Customer Care center,

Ernakulam whereby he was informed that the matter is being

enquired into. Subsequently, he persuaded the matter through

his lawyer by filing complaint on 04/05/2005 to the Senior

Superintendent of Post Offices, Ernakulam. Then on 28/5/2005,

he received a letter from the Customer Care centre, Ernakulam

that the registered letter issued to the accused was delivered on

01/03/2005.       After receipt of information from the postal

authorities that the notice was delivered to the accused on

01/03/2005 which was intimated to the complainant only on

28/5/2005, the complaint was filed before the concerned court on

02/06/2005 along with petition to condone the delay.

      4.     As per the proviso to Section 142(b) of the N.I.Act

which was inserted by Act 55 of 2002 came into effect from

06/02/2003, cognizance of a complaint under Section 138 of the

Negotiable Instruments Act may be taken by the court even after

Crl.R.P.No.2043/2005             3


the prescribed period, if the complainant satisfies the court that

he had sufficient cause for not making the complaint within the

period specified in Section 142(b). In the present case sufficient

reasons for the delay in filing the complaint were specifically

stated by the petitioner in the affidavit filed in support of the

petition. But the learned Chief Judicial Magistrate mistakenly

overlooked the reasons stated therein and also the amended

provisions of Section 142(b). It is not proper rather justifiable to

dismiss the complaint for the fault on the part of the postal

department and without any willful default on the part of the

petitioner/complainant.

      5.     Accordingly, I found that this Court should definitely

interfere with the order passed by the learned Chief Judicial

Magistrate in Crl.M.P.No.2678/2005 and that order is set aside.

The matter is remanded to the court of the Chief Judicial

Magistrate, Ernakulam and is directed to proceed with the

complaint in accordance with law. The complainant shall appear

before that court on 25/7/2011.

                                      (M.C.HARI RANI, JUDGE)

jsr
             // True Copy//     PA to Judge

Crl.R.P.No.2043/2005    4

Crl.R.P.No.2043/2005    5

Crl.R.P.No.2043/2005    6

Crl.R.P.No.2043/2005    7




                                M.C.HARI RANI, J




                             Crl.R.P.No.504 of 2001




                                          ORDER




                            17th DAY OF JUNE 2001

Crl.R.P.No.2043/2005    8

EMPTY CHEQUES ISSUED AT THE TIME OF BORROWING AS SECURITY , WHEN BOUNCED NO COMPLAINT IS MAINTAINABLE=10. Now coming to the second ground, namely, the cheques in question were not given in discharge of any legally enforceable liability, we have to look into the cross examination of P.W.1 done by the accused. In the cross-examination, he has stated that these three cheques were given only as blank cheques and except the signatures of the respondent, all the other writings in the cheques were made only by P.W.1. Apart from this, he has further gone to the extent of saying that he has got yet another blank cheque given by the respondent in his custody. If we look into the chief examination of P.W.1 it would reveal that it is the case that all the three cheques were filled up duly and thereafter, they were brought by the accused and given to the company. This material contradiction between the chief examination and the cross examination has not been explained to this Court. This only probablises the defence taken by the accused.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  16.03.2011

C O R A M

THE HONOURABLE MR.JUSTICE S. NAGAMUTHU

Criminal Appeal No.365 of 2003

M/s.Sakthi Finance Limited,
No.475, Dr.Nanjappa Road,
Coimbatore-641 018 and
Branch at K.K.P.Building,
88, Salem Main Road,
Namakkal-637 001
rep. by its General Manager
Mr.R.K.Parameswaran                                ... Appellant
VS

K.Selvaraj                                  ... Respondent


Criminal Appeal is filed under Section 378 of Cr.P.C. to call for the records in C.A.No.59/2002 on the file of the Additional District Judge, Fast Track Court, Namakkal and to set aside the judgment dated 18.11.2002 and consequently, confirm the sentence against the respondent herein as imposed by the learned Judicial Magistrate No.I, Namakkal in C.C.No.165/1996.

For Appellant          : Mr.E.Om Prakash
For respondent       : Mr.O.V.Krishnan,
        ACGSC
  J U D G M E N T

The appellant filed C.C.No.165/1996 on the file of the learned Judicial Magistrate No.I, Namakkal against the respondent herein alleging that the respondent had committed offence punishable under Section 138 of the Negotiable Instruments Act.  The learned Magistrate by judgment dated 7.8.2000 found the respondent guilty under Section 138 of the N.I. Act and accordingly, imposed a sentence of rigourous imprisonment for one year.  Challenging the same, the respondent preferred an appeal in C.A.No.59/2002 before the Additional District Judge, Fast Track Court, Namakkal.  The said appeal came to be disposed of by judgment dated 18.11.2002.  The lower appellate court set aside the conviction and sentence imposed by the trial court and acquitted the respondent.  Aggrieved over the same, the appellant is before this Court with this appeal against acquittal.

2. The facts of the case in brief would be as follows:
The appellant is a Public Limited Company, incorporated under the Companies Act and the same is carrying on the business in hire purchase and leasing.  It has got its registered office at No.475, Dr. Nanjappa Road, Coimbatore.  The said company has a branch office at Namakkal.  The respondent entered into a hire purchase agreement with the appellant company on 26.3.1995 for the purchase of three Ashok Leyland LPG Tankers.  His wife Mrs.Lakshmi Selvaraj stood as a guarantor.  As per the agreement, the respondent agreed to repay the loan amount of R.10,26,698/- together with interest in 42 monthly instalments.  But he committed default.  When the same was demanded, the respondent issued three cheques for a total sum of Rs.29,95,538/-.  The first cheque was for a sum of Rs.16,30,538/-, the second cheque was for Rs.3,65,000/- and the third cheque was for Rs.10,00,000/-.  Thus the total amount due under all the three cheques was Rs.29,95,538/- and the three cheques were presented for collection.  But they were dishonoured since there was no sufficient fund in the account of the respondent to honour the cheques.  Therefore, the appellant company issued a statutory notice as required under Section 138 of the N.I. Act on 18.5.1996.  The said notice was received by the respondent on 20.5.1996.  But he did not comply with the notice.  Therefore, a private complaint was lodged by the appellant before the Judicial Magistrate No.I, Namakkal.

3. Before the trial court on the side of the complainant, as many as 4 witnesses were examined and  8 documents were exhibited. P.W.1 was the Branch Manager of the Namakkal Branch who has spoken to about the hire purchase agreement between the respondent and the appellant company and also the issuance of three cheques in question by the respondent and all the other subsequent facts including the issuance of statutory notice.  P.W.2 was the then Law Assistant working at the Head Office of the appellant company who has spoken to about the statutory notice issued to the respondent by the head office.  P.Ws.3 and 4 are the officials of the bank who have spoken to about the dishonour of the cheques.  So far as the documents are concerned, Ex.P.1 is the Power of Attorney executed by the company in favour of P.W.1 to lay a private complaint.  Ex.P.2 are the cheques in question.  Ex.P.3 is the memo from the bank indicating the dishonour of the cheque.  Ex.P.4 is the copy of the notice dated 18.5.1996 and Ex.P.5 is the letter given by the postal authorities evidencing the service of notice on the respondent.  Ex.P.6 is the account book maintained. Ex.P.7 and Ex.P.8 are also similar records pertaining to the hire purchase agreement.


4. The respondent contended before the lower court that P.W.1 had no authority to lay a private complaint on behalf of the appellant because there was no authorisation given by the company nor was there any resolution passed by the company authorising P.W.1 to lay the complaint.  He would further submit that the cheques were not given in discharge of any enforceable legal liability.  Per contra, it was contended that only blank cheques were obtained from the respondent by the appellant when the hire purchase agreement was executed.  The cheques were given only as a security to ensure prompt payment and they were never intended to be used for realising any amount by the respondent.  Therefore, according to the learned Counsel for the respondent, there is no truth in the allegation that the cheques were given in discharge of any existing liability.  It was also contended that the statutory notice said to have been issued by the appellant company was addressed to a wrong address and the same was never received by him.  Thus, according to him, the statutory notice was not at all served on him.  Therefore, the appellant company has not complied with the mandatory requirements under Section 138 of the N.I. Act, it was contended by the learned Counsel for the respondent.

5. Having considered the rival contentions, the trial court rejected the defence taken by the accused and found him guilty under Section 138 of the N.I.Act.  But the lower Appellate Court has accepted all the above three contentions and on these three grounds, the lower Appellate Court reversed the findings of the trial court and acquitted him.  Aggrieved over the same, the appellant company is now before this Court with this appeal.

6. I have considered the submissions made on either side and also perused the records.

7. The learned Counsel for the appellant would submit that all the three grounds on which the lower Appellate Court acquitted the respondent are not tenable and they are not legally sound.  In so far as the authorisation in favour of P.W.1 to lay the private complaint is concerned, the learned Counsel for the appellant would submit that under Ex.P.1, an appropriate authorisation was given by the company. Therefore, the first ground raised by the respondent should fail.  But the learned Counsel for the respondent would submit that the same has been signed by one person known, claiming himself to be the authorised signatory of the appellant company.  The learned Counsel for the respondent would further point out that there was no resolution produced before the court so as to know whether the signatory of the said document was, in turn, authorised by the appellant P.W.1 to lay the private complaint.


8. I have considered the above submissions very carefully.

9. A perusal of Ex.P.1 would go to show that the same has been signed by a person claiming himself to be the authorised signatory of the appellant company.  As rightly held by the lower Appellate Court, it has not been explained  as to who the authorised signatory was and what for was the authorisation and by whom.  As pointed out by the learned Counsel for the respondent now, no resolution of the board nor any other document has been produced in evidence to show that the person who has signed the said document as authorised signatory really had authorisation to execute the said document. This creates doubt.  Even before this Court, the learned Counsel for the appellant is not in a position to explain this.  Therefore, as far as the 1st ground upon which acquittal has been made by the lower Appellate Court deserves to be confirmed.

10. Now coming to the second ground, namely, the cheques in question were not given in discharge of any legally enforceable liability, we have to look into the cross examination of P.W.1 done by the accused.  In the cross-examination, he has stated that these three cheques were given only as blank cheques and except the signatures of the respondent, all the other writings in the cheques were made only by P.W.1.  Apart from this, he has further gone to the extent of saying that he has got yet another blank cheque given by the respondent in his custody.  If we look into the chief examination of P.W.1 it would reveal that it is the case that all the three cheques were filled up duly and thereafter, they were brought by the accused and given to the company.  This material contradiction between the chief examination and the cross examination has not been explained to this Court.  This only probablises the defence taken by the accused.
11. According to the accused, as I have already stated, the cheques were never intended to be used for realising any amount.  But they were given only as blank cheques as security.  From the answers given by P.W.1 during the cross-examination as extracted above, I am of the view that the defence has established the correctness of the stand taken, by means of preponderance of probabilities.

12. Now coming to the third and vital point, according to the respondent, the statutory notice under Section 138 of N.I. Act was not served at all upon him.  In order to prove that such statutory notice was really issued, the appellant has examined P.W.2.  P.W.2 was the then Law Assistant in the head office of the appellant company from where the notice is said to have been given.  He would state that the notice was given to the respondent to his address at No.4, Periannan Street, Namakkal.  But P.W.1 and P.W.2 would admit that the address given in all the documents such as hire purchase agreement is No.76, Lion Street, Namakkal.  It is not explained to the court as to why the notice was not sent to this address instead it was sent to a different address.  But the learned Counsel for the appellant would submit that the address at No.4, Periannan Street, Namakkal is the address where the respondent was running his business.  But this explanation is only an after thought because there is no such explanation offered by P.W.1 or P.W.2.  There has been no record produced before the court by way of evidence to show that the respondent was having his business place at No.4, Periannan Street, Namakkal.  The lower Appellate Court has therefore found that the notice said to have been issued by the appellant was sent to a wrong address.  In this conclusion, I do not find that there is any infirmity.

13. Above all, it is the admitted case that the postal acknowledgement card was not produced before the court as evidence.  Though it is stated that the respondent received the notice at the address given at No.4, Periannan Street, Namakkal, it is not known as to why the said acknowledgement card was not produced before the court.  That apart, the postal receipt for sending the notice by registered post also has not been produced.  Instead, a letter from the postal authorities certifying that the said notice was served on the respondent alone has been produced.  Quite naturally, the said certificate does not contain the signature of the respondent.  It is needless to point out that when a registered Thapal is served on the addressee, apart from getting his signature in the acknowledgement card, his signature would be received by the postman in the register maintained by the Postal Department.  May be the case of the appellant is that the original acknowledgement card was not received back by the appellant.  If that is so, nothing would have prevented the appellant to summon the said register which would have contained the signature of the accused if the accused had acknowledged the said notice.  It is also not explained as to why the postman has not been examined to speak about the facts that the notice was really served on the respondent.

14. As per Section 114 (g) of the Evidence Act, there has to be presumption raised against the appellant that by failing to produce the best evidence available, namely, the original register maintained by the postal authorities and the postman before the court, the appellant has to suffer from adverse inference drawn under the said provision. Of course, such adverse presumption is rebuttable, but the same has not been rebutted by the respondent. On this ground also, the judgment of the lower Appellate Court deserves to be confirmed.



15. In any view of the forgoing discussions, I do not find any infirmity at all in the findings of the lower Appellate Court warranting interference at the hands of this Court.

16. In the result, the Criminal Appeal fails and the same is accordingly dismissed.








tsi

To

The  Additional District Judge, Fast Track Court, Namakkal.

The Judicial Magistrate No.I,
Namakkal

THE AGE OF INK = "6. It is seen from the judgment referred supra, the learned Judge after getting opinion from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu came to the conclusion that no such facility is available in the Forensic Science Department, Government of Tamil Nadu and also on the basis of the opinion expressed by the Assistant Director held that the age of the ink cannot be found out. Now the revision petitioner has produced a brochure downloaded from the Central Forensic Science Laboratories, Hyderabad Website wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter written from the office of Government Examiner of Questioned Documents Directorate of Forensic Science, Hyderabad, the age of the ink can be ascertained by comparing it with the admitted signature of the same period and at the same time it has been stated that there is no foolproof method by which the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and having regard to the particulars available from the Website of Central Forensic Science Laboratory, Hyderabad, the prayer for the revision petitioner can be considered and the document can be sent to Central Directorate of Forensic Science in the office of Government Examiner of Questioned Documents. Further, the revision petitioner should also send the admitted signature of the first defendant alleged to have been written during the relevant period during which the disputed document was also signed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:       1-2-2011

CORAM

THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

CRL.O.P.No.27211  of 2010
and M.P.Nos.1 and 2  of 2010


A. Devaraj ..Petitioner

vs

Rajammal ..Respondent


Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.

For petitioner   :  Mr.N. Sudharsan

For respondent   :  Mr.P. Ananda Kumar


ORDER


The petition is filed seeking a direction to  set aside the order dated 10.11.2009 made in Crl.R.C.No.37/2008 by the learned Additional District and Sessions Judge, Gopichettypalayam and confirming the order passed by the learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008.


2.    Petitioner is the accused in C.C No.595 of 2004 pending on the file of Judicial Magistrate, Sathyamangalam, Erode. The said proceedings was initiated on a private complaint lodged by  the respondent for an offence under Sec.138 r/w 142 of Negotiable Instruments Act (hereinafter referred to as "Act").

3.    Pending proceedings, the petitioner has filed CMP No.3579 of 2007 under Sec.45 of the Indian Evidence Act seeking for an order to send the cheque to the expert to determine the "age of the ink" found in the cheque.   It was opposed by the complainant. The learned Judicial Magistrate relied on a decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran),  wherein it is held that there is no scientific facility to determine the age of the ink. Consequently,  the learned Magistrate dismissed the application.

4.    The petitioner has filed a revision petition in Crl.R.C.No.37 of 2008 before the learned Additional District and Sessions Judge, Gopichettipalayam. The learned Additional District and Sessions Judge (Fast Track Court II), after considering the points, concurred with the learned Judicial Magistrate and dismissed the revision.  Aggrieved by which, the accused is before this Court under Sec.482 Cr.P.C.


5.   Mr.N. Sudharsan, learned counsel for the petitioner drew our attention to an order passed by this court on 2.11.2010 in CRP (PD) No.  1475 of 2010, wherein, His Lordship R.S. Ramanathan J. observed as follows:

"6. It is seen from the judgment referred supra, the learned Judge after getting opinion from the Assistant Director, Document Division, Forensic Science Department, Government of Tamil Nadu  came to the conclusion that no such facility  is available in the Forensic Science Department, Government of Tamil Nadu and also on the basis of the opinion expressed by the Assistant Director held that the age of the ink cannot be found out.  Now the revision petitioner has produced a brochure downloaded from the Central Forensic Science Laboratories, Hyderabad Website wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter written from the office of Government Examiner of Questioned Documents Directorate of Forensic  Science, Hyderabad, the age of the ink can be ascertained by comparing it with the admitted signature of the same period  and at the same time it has been stated that there is no foolproof method by which  the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and having regard to the particulars available from the Website of Central Forensic Science Laboratory, Hyderabad, the prayer for the revision petitioner can be considered and the document can be sent to Central Directorate of Forensic Science in the office of Government Examiner of Questioned Documents. Further, the revision petitioner should also send the admitted signature  of the first defendant alleged to have been written during the relevant period during which the disputed document was also  signed.

6. He also relied on a decision reported in  2007 (1) Crimes 106 (SC), (Kalyani Baskar vs M.S. Sampornam), wherein the Apex Court has held  as follows:
   
"Where accused in a cheque bouncing case prayed to Magistrate to send cheque in question for examination by handwriting expert to ascertain genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/s 243(2) Cr.P.C"

7.   On the contrary, Mr.Anandakumar, the learned counsel  for the respondent submitted that the alleged transaction took place in the year 2004 and the accused has chosen to file an application only in the year 2007 and therefore, at the belated stage, the application cannot be entertained and it is only a delaying tactics by the accused petitioner.

8.   The learned counsel relied on a decision reported in   2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another) , wherein this Court has held that finding the  age of the writing in a document is only futile, since the Head of the Department of Forensic Science at Chennai had stated that there is no scientific method available anywhere in this State to scientifically assess the age of any writing.

9.   Heard and perused the materials available on record.

10.  The petitioner has  invoked Sec.45 of Indian Evidence Act contending that the cheque was not issued to the complainant but had been issued to the brother of the complainant during 1998 and 1999 and to prove that  the writings in the cheque do not belong to the year 2004 as dated in the cheque,  the age of the ink has to be determined.

11.  The learned Judicial Magistrate as well as the revision authority had relied on the decision reported in 2008 (1) CTC 496 (S.Gopal vs P. Balachandran) (cited supra) and  has also relied on a decision reported in  2010 1 CTC 424 (R. Jagadeesan vs N. Ayyasamy and another)  (cited supra), wherein it is held that  there is no facility available to determine the age of the ink.  However, another  learned Single Judge of this court has  now held  that the Central Forensic Science Laboratory at Hyderabad has the facility to ascertain the age of the ink.

12.  In my considered opinion, the latest judgment of the learned Single Judge of this Court in CRP (PD) NO.1475  of 2010 is not a contradictory judgment to the earlier judgment of the learned Single judge in the case of R. Jagadeesan vs N. Ayyasamy and another, reported in 2010 (1) CTC 424. Hon'ble   R.S. Ramanathan J. has differentiated the earlier judgment of Hon'ble S. Nagamuthu J,  and has ordered sending the document to be examined by the CFSL, Hyderabad  as they claim the facility is available.

13.  Since the learned Magistrate has dismissed the application based on the earlier judgment, I am of the considered view that when there is facility available, a fair trial requires that a chance must be given to the accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999, which has been used by the complainant in the year 2004. However, as observed in the order dated 2.11.2010 in CRP (PD) No.1475 of 2010,  an admitted signature of the petitioner of the same year should also be sent for comparison.

14.  Therefore, the criminal original petition is allowed and the order passed by the  learned Additional District and Sessions Judge, Gopichettypalayam in Crl.R.C.No.37/2008 dated 10.11.2009  and  learned Judicial Magistrate, Sathyamangalam in CMP No.3579 of 2007 in C.C.No.595 of 2004 dated 2.5.2008 are set aside.

15. The revision petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt of a copy of this order before the lower court. The lower court is directed to send both the documents to the Central Forensic Science Laboratory, Directorate of Forensic Science as stated above. The lower court is directed to fix the remuneration to the Advocate Commissioner and also for the expenses  for comparison. If the revision petitioner fails to produce the admitted signature for comparison as stated above within the stipulated period, the revision petitioner is not entitled to ask  for sending the documents for comparison.  Consequently, the connected MPs are closed.









sr

To

1. Additional District and Sessions Judge, Gopichettypalayam
2. The Judicial Magistrate,
   Sathyamangalam