Full Judgment
IN THE HIGH COURT OF KERALAATERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY,THE3D DAYOF FEBRUARY2014/14TH MAGHA, 1935 Crl.Rev.Pet.No. 129 of 2014 () ------------------------------- AGAINST THE ORDER
IN CMP.NO.2996/2013 IN ST.NO.2645/2011 OF JUDICIAL I CLASS MAGISTRATE COURT,KOLENCHERRY DATED31.12.2013 REVISION PETITIONER/ACCUSED: --------------------------------------------------- U.A. XAVIER S/O.ANTONY,UREATHHOUSE, AMBALLUR P.O. MULANTHURUTHY. BY ADV.SRI.AYPE JOSEPH RESPONDENTS/COMPLAINANT/STATE : ----------------------------------------------------------- 1. PREMACHANDRAN S/O.SETHUMADHAVAN, CHERUMUTTATH HOUSE, IRUMPANAM P.O. THIRUVANKULAM, ERNAKULAM.
2. STATE OF KERALA REP.BYPUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. R1 BY ADV.SRI.SHAJI P.CHALY R1 BY ADV.SRI.R.SANJITH R2 BY PUBLIC PROSECUTOR SRI.REJI JOSEPH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON3001-2014, THE COURT ON0302-2014 PASSED THE FOLLOWING: AV M.L. JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No.129 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February 2014 ORDER
This Criminal Revision Petition is filed by the petitioner in C.M.P. No.2996 of 2013 in S.T. No.2645 of 2011 on the file of the Judicial First Class Magistrate Court, Kolencherry.
2. C.M.P. No.2996 of 2013 is a petition filed by the accused in S.T. No.2645 of 2011 on the file of Judicial First Class Magistrate Court, Kolencherry to reopen the evidence and to recall PW1.
3. The averments contained in the Criminal Revision Petition are as follows. The petitioner is the accused in S.T. No.2645 of 2011 on the file of the Judicial First Class Crl.R.P. No.129 of 2014 :2: Magistrate Court, Kolencherry, in a proceeding under Section 138 of the Negotiable Instruments Act. The petitioner has not borrowed any sum from the complainant and issued the cheque bearing No.677502 of State Bank of India, M.G. Road, Ernakulam to him. It is submitted that the petitioner had no transaction with the complainant. In fact the petitioner had received an amount of `15,000/- on 11.4.2007, from one Prince, Pulimootil House, Kanjiramatom, and towards security for the same he issued the cheque to him. It is informed that said Prince advanced money to him on the recommendation of Mr.Tomy, who is presently working in New Zealand, a friend of both the petitioner and Prince, a cousin of the petitioner. Later the petitioner had repaid the entire amount with interest, to Mr.Prince and cleared the entire liability with him on 17.5.2008. But he had not given back the cheque and the two blank papers signed on the revenue stamp affixed. He assured Crl.R.P. No.129 of 2014 :3: to return the same soon since the same was kept in the locker. Even when petitioner repeatedly demanded for the cheque and the signed papers, he was evading to return same. Mr. Prince would have given the cheque, to the complainant and presented the same in the bank. The petitioner had sent a reply notice to the lawyer notice sent on the dishonour of the cheque, which is marked in the case.
4. During cross examination of the complainant, specific questions were raised regarding his source of income, his business transaction etc. The petitioner could not examine PW1 in detail regarding the documents mentioned by him. The petitioner also wanted to examine him as a defence witness in the case, and as such the petitioner filed a petition before the Judicial First Class Magistrate Court, Kolencherry in C.M.P. No.2996 of 2013 seeking to recall PW1 and to reopen evidence. The complainant filed an objection to the petition. Crl.R.P. No.129 of 2014 :4:
5. The learned Magistrate dismissed that petition on the ground that several chances were given to the accused, but the accused did not use that opportunity properly and that the intention of the accused is to protract the matter. Against that order, the petitioner/accused filed this Criminal Revision Petition.
6. Heard the learned counsel for the revision petitioner, learned counsel for the first respondent and the learned Public Prosecutor. At the time of hearing the learned counsel for the revision petitioner raised the following arguments. The petition was filed seeking to recall PW1 in order to cross examine him with regard to the documents and other aspects. The petitioner could not examine PW1 in detail regarding the documents mentioned by him and also want to examine him as a defence witness in the case. The court below would have given an opportunity to adduce evidence by entering him in the Crl.R.P. No.129 of 2014 :5: box. The court below ought to have found that there was no legally enforceable debt as per the cheque in the case. The learned counsel for the first respondent supported the order under challenge.
7. A mere perusal of the order under challenge shows that several chances were given to the accused to substantiate his case by adducing evidence. Since the matter involved in this case relates to an amount of `5 lakhs, I am of the view that in the interest of justice some more opportunity should be given to the accused to substantiate his case. Accordingly this Criminal Revision Petition is allowed and the order dismissing C.M.P. No.2996 2013 on the file of Judicial First Class Magistrate Court, Kolencherry is set aside and that C.M.P. is allowed and the evidence is reopened. The learned Judicial Magistrate is directed to give some more opportunity to the accused to substantiate his case. Parties are Crl.R.P. No.129 of 2014 :6: directed to appear before Judicial First Class Magistrate Court, Kolencherry on 3.3.2014. Sd/- M. L. JOSEPH FRANCIS, (JUDGE) dl/ // TRUE COPY // PA TO JUDGE