IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1097 of 2008()
1. JACOB THOMAS, ULLATTIL, MOUNT FORT
... Petitioner
Vs
1. ALI.T., PROPRIETOR,
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.BABU VARGHESE
For Respondent :SRI.PHILIP T.VARGHESE
The Hon'ble MR. Justice V.RAMKUMAR
Dated :22/07/2008
O R D E R
V. RAMKUMAR, J.
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Crl.R.P.Nos.1097
& 2435 of 2008
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Dated this the 22nd 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 23rd day of July, 2008.
V. RAMKUMAR, JUDGE
sj
