IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.Rev.Pet.No. 1097 of 2008() ------------------------------ CRA.799/2004 of ADDL.SESSIONS COURT (SPL.CAURT), KOTTAYAM CC.220/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... REVN. PETITIONER: RESPONDENT/COMPLAINANT -------------------------------------------------------------------------------- JACOB THOMAS, ULLATTIL, MOUNT FORT APARTMENT, MUTTAMBALAM VILLAGE, KOTTAYAM. BY ADV. SRI.BABU VARGHESE RESPONDENTS: ACCUSED AND STATE -------------------------------------------------------------- 1. ALI.T., PROPRIETOR, KOHINOOR ROLLER FLOUR MILLS, CRESCENT HOUSE, CARITAS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.Nos.1097 & 2435 of 2008 = = = = = = = = = = = = = = Dated this the 22 nd day of July, 2008 ORDER Heard both sides. 2.Crl.R.P.No.1097 of 2008 is filed by the complainant and Crl.R.P.No.2435 of 2008 is filed by the accused in C.C.No.220 of 2004 on the file of the J.F.C.M-II(Mobile), Kottayam. The said case was a prosecution under Section 138 of the Negotiable Instruments Act, 1881 involving a cheque for Rs.57,72,465/- allegedly issued by the accused to the complainant in discharge of a debt. The learned Magistrate after trial, as per judgment dated 24.11.04 found the accused guilty of the offence and sentenced him to undergo simple imprisonment for one year and directed him to pay the cheque amount as compensation to the complainant under Section 357(3)Cr.P.C with a default sentence of simple imprisonment for six months. 3. Aggrieved by the said conviction and sentence, the accused filed Crl.Appeal No.799 of 2004 before the Sessions Court, Kottayam. As judgment dated 31.1.08, Additional Crl.R.P.No.1097/08 &2435/08 2 Sessions Judge (Spl), Kottayam set aside the judgment of the trial court with a direction to send the original cheque to the Forensic Science Laboratory along with admitted handwritings of the accused for expert examination and comparison. The main premise on which the lower appellate court remanded the matter to the trial court was that even the original of the cheque was not before the court. It is conceded by both sides that the above premise is wrong. In fact, this Court called for the lower court records in which the original cheque which was marked as Ext.P1 is available. It is not known as to how the lower appellate court was persuaded to hold that the original cheque is not found in the records. 4. Both sides have a grievance that the statement in the judgment of the lower appellate court that the appeal was heard on 24.1.08 is not correct and that the appeal was actually heard sometime in the year 2006 and judgment was pronounced in 2008. It is quite possible that in the period in between, the lower appellate court might have forgotten the various contentions raised by either side before the court below 5. In as much as the lower appellate court was bound to re-appreciate the evidence and come to its own independent conclusion on the evidence before it, the lower appellate court Crl.R.P.No.1097/08 &2435/08 3 has abdicated its functions and has simply remanded the case to the trial court on the footing that Ext.P1 is only a photocopy of the cheque and that the original was not before the court. This was a palpable mistake committed by the lower appellate court which failed to see that what was before the court was the original cheque itself, that is Ext.P1. I am not highlighting the other mistakes committed by the lower appellate court in the impugned judgment, which cannot, therefore be sustained and is accordingly set aside and Crl.Appeal No.799/04 shall stand remanded to the lower appellate court for disposal afresh after hearing both sides. The parties shall appear before the lower appellate court without any further notice on 18.8.08. It is needless to emphasis that the appeal being an old one, every earnest endeavour shall be made by the lower appellate court to dispose of the same expeditiously and at any rate within two months of receipt of a copy of this order. Dated this the 23 rd day of July, 2008. V. RAMKUMAR, JUDGE sj