IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 Crl.Rev.Pet.No. 889 of 2011(A) ------------------------------------------- [CRL.A.NO.317/2007 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA, ST.NO.112/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, VATAKARA] .................... REVISION PETITIONER/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------------------ RAJEEVAN.V.P., S/O.KANARAN, VENGALULLAPARAMBATH (H), PONMERIPARAMBIL P.O., VILLIAPPALLI. BY ADV. SRI.P.M.HABEEB. RESPONDENT/APPELLANT/ACCUSED: ------------------------------------------------------- 1. MOHANKUMAR.E.P., S/O.NARAYANAN NAIR, ROSE VILLA HOUSE, POZHUTHANA P.O., VAYANAD DISTRICT, PIN – 673 575. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R1 BY ADVS. SRI.T.R.RAVI, SRI.P.S.MURALI. R2 BY PUBLIC PROSECUTOR SRI. JAIBY PAUL. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN,J -------------------------------- Crl.R.P.No.889 of 2011 ---------------------------------------- Dated this the 1st day of June, 2011 ORDER The complainant in a prosecution for the offence under Section 138 of the NI Act is the revision petitioner, and the same is filed challenging the judgment dated 30.9.2010 in Crl.A. No. 317/2007 of the court of Addl. District and Sessions Judge, Vatakara by which the learned Sessions judge modified the judgment of the trial court dated 20.3.2007 in ST.No.112/2006 of the Judicial First Class Magistrate-II, Vatakara and remitted back the matter for fresh disposal. 2. Heard the counsel for the petitioner as well as the counsel for the respondents. 3. I have perused the judgment of the trial court as well as the appellate court. S.T.No.112/2006 is instituted in Judicial First Class Magistrate Court-II, Vatakara upon the private complaint preferred by the revision petitioner for the offence punishable under Section 138 of the NI Act, against the respondent herein. Crl.R.P.No.889 of 2011 2 4. The allegation is that the accused borrowed an amount of Rs.1,50,000/- from the complainant/petitioner and towards the discharge of the liability the accused issued the cheque in question which when presented for encashment, dishonoured due to insufficiency of funds in the account maintained by the accused. During the trial, the complainant was examined as PW1 and Exts.P1 to P9 were marked. No evidence was adduced either oral or document for and on behalf of the defence. The trial court finally found that the accused is guilty of the charge levelled against him and accordingly the revision petitioner is convicted for the offence under Section 138 of the NI Act. On such conviction the accused is sentenced to undergo simple imprisonment for a period of 9 months and also directed him to pay a compensation of Rs.1,50,000/- to the complainant under Section 357(3) of Cr.P.C. The default sentence has fixed as 6 months. 5. Challenging the above conviction and sentence and direction to pay compensation, the accused preferred Crl. Crl.R.P.No.889 of 2011 3 Appeal No.317/2007, which ultimately resulted in the judgment impugned in this revision. After considering the entire facts and circumstances, involved in this case, the appellate court has found that the trial court denied opportunity to the accused by dismissing his petitions to examine himself as a witness and by dismissing his other petitions, which referred in the appellate court judgment, when the accused attempted to substantiate his plea by adducing evidence. So, according to the learned Sessions judge, the denial of opportunity to the accused to adduce evidence to prove his case is incorrect and therefore, the learned Sessions Judge after setting aside the judgment of the trial court remanded the matter back to the trial court for re-trial giving opportunity to both sides to adduce evidence. It is the above judgment of the appellate court challenged in this revision petition. 6. I have heard Sri. Habeeb, learned counsel appearing for the revision petitioner and Sri.Ravi, learned counsel appearing for the respondents. I have also perused the Crl.R.P.No.889 of 2011 4 judgment of the trial court as well as the appellate court. 7. The learned counsel for the revision petitioner vehemently submitted that the cheque in question is dated 1.11.2003 that too for an amount of Rs.1,50,000/-. It is specifically pointed out that the case was pending in the trial for evidence right from 27.9.2008 onwards and during such trial the accused has filed several petitions with the prayer to call for records and also for examination of witness and many of those petitions were allowed but, accused did not take steps in time and consequently, even the petitions which allowed were subsequently rejected. So the attempt of the learned counsel is to show that the accused was adopting tactics to prolong the trial. It is also the submission of the learned counsel, the grounds now taken by the accused before the appellate court on the basis of which the appellate court remanded the matter, has not taken at any point of time during the trial. Thus, according to the learned counsel the judgment of the appellate court setting aside the judgment of the trial court and remanding Crl.R.P.No.889 of 2011 5 the matter for fresh disposal is absolutely unwarranted. 8. On the other hand, Sri. N.Ravi, learned counsel appearing for the respondent empathetically submitted that the appellate court after having satisfied the denial of justice to the accused by denying opportunity to the accused to substantiate his plea for an acquittal, remanded the matter for fresh disposal and that too based upon the materials made available to the appellate court during the hearing of the appeal. It is also the submission of the learned counsel for the respondent that by the judgment impugned in the revision petition the trial court can come into the correct conclusion regarding the right and liabilities of the parties based upon the cheque in question and therefore, this Court need not interfere in the matter at this stage. 9. I have carefully considered the arguments advanced by the learned counsel for the petitioner as well as the respondents. Going by the judgment of the trial court and from the arguments advanced by the learned counsel for Crl.R.P.No.889 of 2011 6 the parties concerned it can be seen that right from the beginning of the proceedings in the trial court, the accused has got a case that the cheque in question was not issued in favour of the complainant as claimed by him, but according to the accused the said cheque was obtained one Kunjikkannan. It appears that though the accused has taken steps during the trial of the case, the same was not materialised effectively for the reason best known to him. However, in appeal by filing C.M.P.No.589/2008 in the appellate court, the accused requested the court to produce some documents. The appellate court has mentioned above those development and documents in paragraph 12 of the appellate court judgment and I am not proposed to repeat the same and I am also not propose to go into the merits or demerits of the same. However, in view of the facts and circumstances involved in this case, I am of the opinion that the court shall shut down door against admitting evidence. On the other hand, according to me, the approach of the court should be liberal and allow the parties to adduce Crl.R.P.No.889 of 2011 7 evidence so that court can come into correct conclusion on the basis of sufficient evidence and materials. Adopting the above approach, I am of the view that this Court need not interfere with the order of appellate court at this stage. But it is to be noted that though the cheque is dated 1.11.2003 and the complainant had approached the court during the year 2004, the complainant is not in a position to enjoy the fruit of the prosecution launched at his instance. It is also discernible from the judgment of the appellate court that the appellate court has directed to the parties appear before the trial court on 30.10.2010 and thereafter nearly six months are over. Therefore, according to me, it is only just and proper to direct the learned Magistrate to expedite the trial as directed by the appellate court and to dispose the matter expeditiously. In the result, this revision petition is disposed of directing the judicial First Class Magistrate Court-II, Vatakara to take up ST.No.112/2006, if it is not already taken and to expedite the trial and dispose the case in Crl.R.P.No.889 of 2011 8 accordance with the direction issued by the appellate court as per the judgment impugned in this revision petition and dispose the case as expeditiously as possible, at any rate within 3 months from the date of receipt of a copy of this judgment which will be produced by the petitioner. V.K.MOHANAN, JUDGE pm/