IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 CRL.REV.PET.NO. 273 OF 2009(D) -------------------------------------------- CRA.784/2008 OF ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.2043/2001 OF JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): IST RESPONDENT/COMPLAINANT ------------------------------------------------------------------------------- FRANCIS T.CHACKO, S/O.CHACKO, AGED 47 YEARS, RESIDING AT THENGUMMOOTTIL HOUSE, CULLEN ROAD, ALAPPUZHA. BY ADV. SRI.T.MADHU RESPONDENT(S): APPELLANT/ACCUSED & STATE ------------------------------------------------------------------- 1. ANNA MAGIE, W/O.JELSON, AGED 43 YEARS, SUPER TYRES, BANERJI ROAD, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, ADV. SRI.G.RAJAGOPAL FOR R1 SRI.P.J.ANTONY BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.273 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of June, 2009 O R D E R -------------- Complainant is aggrieved by the judgment of learned Additional Sessions Judge (Ad hoc-I), Ernakulam in Crl. Appeal No.784 of 2008 remanding the case to the trial court for further evidence and has come up in revision. 2. Petitioner filed a complaint against respondent No.1 alleging that towards repayment of Rs.2,50,000/- and Rs.3,00,000/- borrowed by her, she issued two cheques dated 5.3.2001 and 24.1.2001 respectively. Those cheques were dishonoured for the reason “exceeds arrangement” and on getting notice of dishonour petitioner issued notice to respondent No.1 intimating dishonour and demanding payment. Petitioner was constrained to file the complaint alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act. In the trial court petitioner gave evidence as P.W.1 and proved Exts.P1 to P4. Exhibit P1 is the cheque dated 5.3.2001 for Rs.2,50,000/-. Exhibit P2 is produced to prove its dishonour for the reason stated above. Exhibits P3 and P4 are produced to show issue and service of notice on respondent No.1. Case pleaded by respondent No.1 is that in connection with payment CRL. R.P. No.273 of 2009 -: 2 :- of sales tax for her business concern she used to gave signed blank cheques to the petitioner who is her Chartered Accountant and it is accordingly that the cheque in question was given to the petitioner. That cheque was misused by the petitioner. Respondent did not adduce evidence in support of that contention. Learned magistrate was not inclined to accept that contention in the absence of evidence, found her guilty and sentenced her to undergo simple imprisonment for six months and payment of compensation of Rs.2,50,000/-. There is also a default sentence of two months. Respondent No.1 took up the matter in appeal. While appeal was pending she produced eight documents in the appellate court and made a request to remand the case to the trial court so as to enable her to adduce evidence. Learned Sessions Judge heard the parties and vide the impugned judgment set aside the conviction and sentence and remanded the case to the trial court giving both sides opportunity to adduce further evidence. Learned counsel for petitioner contends that none of the documents produced in the appellate court are relevant to the issue, no explanation is given for not producing those documents in the trial court and it is only at the fag end in the appellate court a petition requesting remand of the case was filed by CRL. R.P. No.273 of 2009 -: 3 :- respondent No.1. It is also the complaint of learned counsel that petitioner did not get an opportunity to prefer his objection to the petition requesting for remand. Respondent No.1 would contend that the documents produced in the appeal would show that respondent No.1 was in the habit of giving cheques to petitioner in connection with payment of sales tax or other amounts payable by the establishment of respondent No.1. 3. It is not as if the appellate court is without power of course, in appropriate cases depending upon the facts and circumstances of each case to remand the case for retrial. Section 386 of the Code of Criminal Procedure provides that appellate court can remand the case for further evidence. Question for consideration is whether appellate court has exercised that power in the proper manner, considering the facts and circumstances of the case. 4. It is true that respondent No.1 did not produce the relevant documents in the trial court which she produced in the appellate court. She ought to have done that. But it is not as if she had not taken up relevant contentions in the trial court. She has contended in what manner the disputed cheques came to the custody of petitioner. It is seen from the testimony of petitioner as P.W.1 that he denied that CRL. R.P. No.273 of 2009 -: 4 :- cheques were given to him in connection with filing of returns or payment of tax dues on behalf of respondent No.1. Learned counsel for respondent No.1 pointed out that the documents produced in the appellate court would show that cheques were given to petitioner for payment of sales tax dues of the establishment of respondent No.1. It is the further case of petitioner as P.W.1 that at the time he advanced the sum of Rs.5,50,000/- he had taken a receipt from the respondent but that receipt was later returned. Appellate court observed that the said receipt is not produced by the petitioner in the court. Appellate court also observed that petitioner who is a Chartered Accountant should have been aware of the provisions in the Income Tax Act regarding payment of amount exceeding Rs.20,000/- as stated in Section 269SS of that Act. It is considering these aspects that respondent No.1 was given an opportunity to adduce evidence. Having gone through the documents produced by respondent No.1 in the appellate court though belatedly and circumstances of the case I am inclined to think that exercise of the discretion by the appellate court in remanding the case was not illegal or irregular requiring interference in revision. I do not find reason to interfere with the judgment under challenge. CRL. R.P. No.273 of 2009 -: 5 :- 5. Learned counsel for petitioner submitted that prosecution was launched in the year 2001. I am aware, the complaint was filed in the year 2001 and it is after about 8 years that learned Sessions Judge remanded the case to the trial court. The apprehension of the petitioner can be allayed by directing learned magistrate to expedite the trial and disposal of the case by giving it utmost priority. This revision fails. It is dismissed. Learned Judicial First Class Magistrate-I, Kochi is directed to expedite trial and disposal of the case by giving it utmost priority. I make it clear that whatever observations contained in the impugned judgment or in this order shall not affect the disposal of the case by the learned magistrate who shall decide the issue untrammelled by any such observation. THOMAS P.JOSEPH, JUDGE. vsv