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.
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CRL. R.P. NO.1485 of 2009
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Dated this the 27th day of July, 2009
O R D E R
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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
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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
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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
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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