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Jacob Thomas vs Ali.T. on 22 July, 2008

Kerala High Court
Jacob Thomas vs Ali.T. on 22 July, 2008
       

  

  

 
 
  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.
                  = = = = = = = = = = = = =
                       Crl.R.P.Nos.1097
                        & 2435 of 2008
                  = = = = = = = = = = = = = =
              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

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