IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 CRL.A.No. 164 of 2001() ----------------------- CC.6/1993 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... APPELLANT/COMPLAINANT:- ------------------------------- STATE - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. BY MS. PUSHPALATHA, PUBLIC PROSECUTOR RESPONDENT/ACCUSED:- ----------------------------- M.T. VISWANATHAN, FORMERLY SENIOR ACCOUNTANT, SUB TREASURY, PUTHIYARA, KOZHIKODE. ADV. MR. BABU JOSEPH KURUVATHAZHA MR. K.I.SAGEER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. -------------------------------------------------- Crl. A. No. 164 of 2001 ---------------------------------------------------- Dated this the 7th day of September, 2009. JUDGMENT In this appeal filed under Section 378 (3) Cr.P.C., the State challenges the judgment dated 06.01.2000 passed by the Enquiry Commissioner and Special Judge, Kozhikode acquitting the respondent/accused under Section 248(1) Cr.P.C of offences under Section 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947 and punishable under Sections 420, 467, 471 and 477 (A) IPC. 2. The respondent/accused was charge sheeted by the Dy.S.P (Vigilance), Kozhikode for the aforementioned offences. The case of the prosecution was that while the respondent was working as a senior Accountant in the Sub- Treasury at Puthiyara in Kozhikode, forged the pension bills in respect of three pensioners and misappropriated a sum of Rs.10,323/-. 3. After the appearance of the accused, the court below framed a charge against him for the aforementioned offences on 01.07.1994. The charge was read over and explained the accused. He pleaded not guilty to the charge. Thereupon, the Crl. Appeal No. 164/2001 : 2 : case was posted for the prosecution evidence. As per the impugned judgment dated 06.01.2000, the court below acquitted the accused of the aforementioned offences by placing reliance upon the decisions of the Apex Court in Raj Deo Sharma v. State of Bihar – AIR 1998 SC 3281 and Raj Deo Sharma v. State of Bihar – AIR 1999 SC 3524 on the ground that the prosecution did not adduce any evidence in support of its case. The above judgment of acquittal was passed pursuant to an order dated 17.12.1999 as per which the prosecution evidence was closed on the basis of the decisions of the Apex Court in Raj Deo Sharma v. State of Bihar referred to above. 4. It may be true that the prosecution was guilty of tardiness and lethargy in not adducing evidence when the case stood posted for the prosecution evidence. But then, this is not a case where the prosecution has expressed helplessness on the ground that it has no evidence to support the prosecution. The charge sheet filed before the court does give an account of the oral and documentary evidence on the strength of which the prosecution proposed to prove its case. The court below was, therefore, not justified in closing the evidence of the prosecution Crl. Appeal No. 164/2001 : 3 : by placing reliance upon Raj Deo Sharma's case. That apart, the decisions relied on by the court below have been subsequently overruled by a 7 Judges' Constitution Bench in P. Ramachandra Rao v. State of Karnataka – AIR 2002 SC 1856. The Constitution Bench has held that in its zeal to protect the right to speedy trial of an accused, the court is not entitled to devise and enact bars of limitation which the legislature has not chosen to impose. The Constitution Bench proceeded to observe that bars of limitation, judicially engrafted with a view to ensure speedy trial guaranteed under Article 21 of the Constitution of India may give rise to greater problems like scuttling a trial without adjudication and giving easy exit to the accused from the portals of the court. As per the charge sheet, the prosecution had proposed to prove its case through 46 witnesses and 68 items of documentary evidence. 5. The mode by which the court below closed the prosecution evidence and recorded the order of acquittal by placing reliance upon Raj Deo Sharma's case which has since been overruled by Ramchandra Rao's case, cannot be supported at all. The impugned judgment is, accordingly, set Crl. Appeal No. 164/2001 : 4 : aside and the case is remitted to the court below for disposal afresh after giving an opportunity to the prosecution as well as the accused to substantiate their respective contentions. The parties shall appear before the court below on 05.10.2009 without any further notice. In the result, this appeal is allowed as above. Dated this the 7th day of September, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 164/2001 : 5 : V.RAMKUMAR, J. = = = = == = = = = = = = = = = = = Crl. Appeal No. 164 of 2001 = = = = = = = = = == = = = = = = = JUDGMENT 07.09.2009 Crl. Appeal No. 164/2001 : 6 :