IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 Crl.Rev.Pet.No. 890 of 2011() ------------------------------------------ CRA.321/2009 of ADDL. DISTRICT & SESSIONS COURT(ADHOC-III) NORTH PARUR CC.NO.229/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS - III, ALUVA .................... REVN. PETITIONER(S): APPELLANT ------------------------------------------------------ A.K. SEBASTIAN, AGED 59 YEARS, S/O. ALANGADAN KOCHUVAREETHU, ALANGADAN HOUSE, GODOWN ROAD, NEAR TOLL JUNCTION, EDAPPALLY.P.O, ERNAKULAM - 682 024. BY ADV. SRI.JAISON JOSEPH RESPONDENT(S): RESPONDENTS ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, DISTRICT COURT, ERNAKULAM. 2. K.J. SEBASTIAN, M/S.K.V. JOSEPH AND SONS, CONTRACTORS, KURIEKAL BUILDING, EDAPPALLY.P.O, ERNAKULAM - 682 024. R1 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S. SATHEESACHANDRAN, J. ------------------------------------------ Crl. R.P No. 890 OF 2011 ------------------------------------------ Dated this the 22nd day of July, 2011. O R D E R The revision is filed by the accused convicted of the offence under section 138 of the Negotiable Instruments Act, for short 'NI Act'. Negativing his plea of not guilty, the learned Magistrate convicted him of such offence and sentenced him to undergo simple imprisonment for a period of one year. He was also directed to pay compensation of Rupees Eighteen Lakhs, the cheque amount with default the term of simple imprisonment for 2 months more. He preferred an appeal challenging his conviction and sentence. Learned Sessions Judge taking a view that there were glaring defects and illegalities in the trial of the case, set aside the conviction and sentence and passed an order of remand directing the Magistrate to take back the case on file and dispose it afresh after de nova trial. Feeling aggrieved, the accused has preferred this revision. 2. This revision was preferred with a petition to condone delay. Notice of such petition was given to the respondent/complainant, but he did not respond to such notice and, later, delay was also condoned. After admitting the revision again notice was given to the notice. Then also after service, respondent/complainant has remained absent. Crl. R. P No.890/2011 -2- 3. I heard the learned counsel for the petitioner. The order of remission directing de nova trial was not based on any challenge canvassed by the accused, the appellant before the Sessions Court, but, solely on the view taken by that Court holding that serious procedural irregularity had accused in the trial of the case and as such the entire trial was vitiated. Learned counsel for the petitioner pointed out that the procedural irregularities which appeared to the Sessions Judge as grave vitiating the trial before the Magistrate were in fact innocuous circumstances not affecting the trial in any manner. 4. After closing of the prosecution evidence the accused had moved an application for recording his answers to the questions under section 313 of the Code of Criminal Procedure through his counsel. That petition was allowed and, thereupon, the answers to the questions under section 313 of the Code were recorded from counsel on the same day, was viewed by the Sessions Judge as a grave procedural irregularity. After recording the answers to section 313 questioning the accused was permitted to lead defence evidence by way of producing documents and such documents had been accepted in part of the evidence, was a material irregularity, according to the Sessions Judge, that vitiated the trial. Evidently, the trial was not Crl. R. P No.890/2011 -3- conducted in tune with the procedure for trial of summons case, was the sole reason that weighed with the Sessions Judge to hold that there was material irregularity in the trial of the case. 5. After going through the judgment rendered by the learned Sessions Judge I find considerable force in the submission made by the learned counsel for the petitioner that the order of remit holding that procedural irregularity has vitiated the trial is patently erroneous and unsustainable in law. True, cases involving dishonour of cheque as per provisions of the Code has to be tried as a summons case having regard to the punishment to be imposed for such offence. However, following of the procedure applicable to warrant cases and, thus, giving further opportunity to the accused to lead rebuttal evidence, more particularly in a case where execution and passing of consideration are denied is more appropriate and, further, essential to advancing the ends of justice. The case was not tried following the procedure for trial of summons case, that alone, will not in any way vitiate the trial where better opportunity had been provided to the accused and further more when none of the parties to the proceedings had any grievance over the trial conducted which led to the conviction of the accused. Learned Sessions Judge has also overlooked the mandatory provisions Crl. R. P No.890/2011 -4- covered by section 465 of the Code of Criminal Procedure where it has been clearly stated that no finding or conclusion is liable to be reversed by reason of error, omission or irregularity unless it has resulted in “failure of justice”. Neither the appellant/accused who suffered conviction nor the complainant had advanced a case that any failure of justice was caused by the procedure followed by the Magistrate in the trial of the case. The order of remission passed by the learned Sessions Judge is liable to be set aside, and I do so. 6. The case is remitted to the Court below for hearing of the appeal afresh and its disposal on merits. Revision petitioner is directed to appear before the additional District and Sessions Court (Adhoc-III), North Parur on 22-08-2011. The Court below, on receipt of records shall give notice to the 2nd respondent/complainant, and, then hear and dispose of the appeal on its merits, which shall be done as expeditiously as possible, at any rate, within an outer limit of 4 months from the date of receipt of this order. Revision is disposed as above. Sd/- S.S. SATHEESACHANDRAN, JUDGE AMG True copy P.A to Judge