High Court Kerala High Court

P.Balasubramanyan vs R.Jayanthy Menon on 27 July, 2009

Kerala High Court
P.Balasubramanyan vs R.Jayanthy Menon on 27 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1485 of 2009()


1. P.BALASUBRAMANYAN,DIRECTOR,
                      ...  Petitioner
2. THE STATE OF KERALA, REPRESENTED BY

                        Vs


1. R.JAYANTHY MENON,D/O.U.G.MENON & ANOTHER
                       ...       Respondent

                For Petitioner  :SMT.K.V.RESHMI

                For Respondent  :SRI.SUNNY MATHEW

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :27/07/2009

 O R D E R
                          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