IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 27TH JULY 2009 / 5TH SRAVANA 1931 CRL.REV.PET.NO. 1485 OF 2009() ---------------------------------------------- CMP.1286/2009 OF JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S) - ACCUSED: --------------------------------------------- P.BALASUBRAMANYAN,DIRECTOR, METRO HABITAT PRIVATE LTD., RESIDING AT 84-F 4TH CROSS, NEW TIPPASANDRA, HALL III STAGE BANGALORE 560 038. BY ADV. SMT.K.V.RESHMI RESPONDENT(S) - RESPONDENT & STATE: ---------------------------------------------------- 1. R. JAYANTHI MENON, D/O.U.G. MENON, C/O. BABU, ETISALAT, SWITCHING PROJECTS (H.O.) P.B. NO.1150, DUBARI, U.A.E. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. ADV. SRI.SUNNY MATHEW FOR R1 BY PUBLIC PROSECUTOR SHRI C.S. HRITHWIK R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.1485 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 27th day of July, 2009 O R D E R -------------- Heard counsel on both sides and Public Prosecutor appearing for respondent No.2. 2. This revision is challenge of order dated 6.4.2009 on C.M.P.No.1286 of 2009 in C.C. No.1018 of 1998 of the court of learned Judicial First Class Magistrate-I, Kozhikode. On a complaint preferred by respondent No.1, petitioner faced trial for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Petitioner was acquitted by the learned magistrate as per judgment dated 17.2.2001. That judgment was challenged by respondent No.1 in this Court in Crl. Appeal No.471 of 2001. Learned Single Judge allowed the appeal and remitted the case to the court of learned magistrate with certain directions. Thereafter there was an attempt on the part of petitioner to adduce further evidence by recalling respondent No.1 and by examining petitioner himself as a witness by filing C.M.P. No.1286 of 2009. That petition was objected to by respondent No.1 and by the impugned order that petition was dismissed by the learned magistrate. Hence the revision. 3. Petition on which the impugned order is passed, obviously CRL. R.P. No.1485 of 2009 -: 2 :- being under Section 311 of the Code of Criminal Procedure (for short, “the Code”) by which recalling of respondent No.1 and opportunity to examine petitioner himself as a witness was requested for, impugned order is one which attracted Sec.397(2) of the Code in so far as it is interlocutory in character. Decision on C.M.P. No.1286 either way will not terminate the proceeding. A revision under Sec.397 and 401 of the Code is not maintainable against such an order. But at this stage after revision has been admitted, I do not consider it necessary to convert the same as Criminal Miscellaneous Case since this Court can invoke the power under Sec.482 of the Code for the disposal of this revision. Question for consideration is whether the prayer of petitioner to reopen the case is maintainable. 4. Respondent No.1 contends that there is no scope for adducing further evidence on the issue regarding liability of petitioner since this Court in appeal against acquittal has found his acquittal is wrong, he is liable for the commission of the offence and the remand was only for the purpose of pronouncing proper sentence. Learned counsel for petitioner contends that petitioner had not received any notice in the appeal. In this proceeding it is unnecessary to go into the question whether petitioner was served with notice on Crl. Appeal No.471 of 2001. That judgment has become final and hence court below was bound by it. Nor can this Court in this proceeding interfere CRL. R.P. No.1485 of 2009 -: 3 :- with the judgment in Crl. Appeal No.471 of 2001 for any reason whatsoever. Therefore the correctness of the order impugned has to be decided with reference to the judgment in Crl. Appeal No.471 of 2001. 5. A copy of the judgment in Crl. Appeal No.471 of 2001 is appended to this revision. It is seen that this Court found that acquittal of petitioner is not justified on the evidence on record. In paragraph 10 of the judgment this Court observed that the contention of the petitioner that cheques were not issued for discharge of a legally recoverable debt/liability as the company itself was not impleaded in the complaint and the finding to that effect by the learned magistrate are not correct and are wholly untenable since petitioner had not raised such a contention in the trial court. In paragraph 11 of the judgment it was observed that learned magistrate was not correct in holding that cheques were not issued in discharge of any debt/liability and that the presumption under Sec.118 of the Act was in favour of respondent No.1. In paragraph 13 it is stated that after carefully considering and evaluating the entire materials available on record this Court was satisfied that learned magistrate was not justified in holding that petitioner was not guilty and therefore the finding of not guilty is set aside. Learned Judge directed that “case is remitted back to the trial court with a direction to pass appropriate CRL. R.P. No.1485 of 2009 -: 4 :- orders on sentence after hearing accused and complainant”. In other words going by the judgment it is seen that remand was for the limited purpose of passing appropriate orders on sentence from which it is clear that the petitioner was found guilty under Section 138 of the Act. Section 386(a) of the Code authorises the appellate court while dealing with an appeal from an order of acquittal to reverse the order and find the accused guilty. Therefore there was no scope for requesting the magistrate to reopen the case to enable petitioner to recall respondent No.1 and adduce evidence to show that he has not issued the cheques for discharge of the liability. Learned magistrate observed that on the facts also petition cannot be sustained since there was no case that after filing of the appeal liability was discharged. Either way I do not find reason to interfere with the impugned order. There is no merit in the revision and is liable to be dismissed. Revision Petition is dismissed. THOMAS P.JOSEPH, JUDGE. vsv