Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945 CRIME NO.148/2007 OF Ernakulam South Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT DATED 04.12.2023 IN CC NO.1217 OF 2008 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM PETITIONER/S: K GOPALAKRISHNAN AGED 64 YEARS S/O KARUNAKARAN NAIR, KRISHNAN KRIPA PANDIT KARUPPAN ROAD NEAR U P BRIDGE, THEVARA ERNAKULAM DISTRICT, PIN - BY ADV IEANS.C.CHAMAKKALA
RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN - 682031 * 2 THEVARA URBAN CO-OPERATIVE SOCIETY LTD, NO:E 784, PERUMANNOOR, THEVARA, KOCHI, REPRESENTED BY ITS PRESIDENT K.T TOMY * ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 29.02.2024. BY ADV SOJAN MICHEAL OTHER PRESENT: SRI. M.C. ASHI (PP) THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.02.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BECHU KURIAN THOMAS, J.
=========================== Crl.M.C.No.711 of 2024 ------------------------------------------------------- Dated this the 29th day of February 2024
ORDER
Petitioner is the accused in C.C.No.1217/2008 on the files of the Additional Chief Judicial Magistrate, Ernakulam.
2. Petitioner is facing prosecution for the offences under Sections 406, 408, 417, 419, 420, 465, 467, 468 and 477-A of the Indian Penal Code, 1860.
3. According to the prosecution, the accused who was the Chief Accountant in-charge of the Secretary at Thevara Urban Co- operative Society, had opened an account in a fake name and misappropriated Rs.1,66,000/- by committing forgery of the documents.
4. During the course of a prolonged trial, the prosecution
examined PWs1 to 14 and petitioner avoided cross-examining PW7 to PW14. Subsequently, prosecution introduced a new witness as PW15, who was examined at length by both sides. Thereafter petitioner filed an application under Section 311 Cr.P.C. seeking to recall PW7 to PW14 contending that the evidence of the new witness PW15 has compelled the petitioner to require cross examining those witnesses.
4. The learned Magistrate by Annexure A3 dated 4.12.2023
dismissed the said application, after finding that PW15 has not brought any new case for the prosecution and therefore, the requirement to recall the prosecution witnesses is only an attempt to delay the conclusion of trial.
5. I have heard Sri.Ieans.C.Chamakkala, learned Counsel for the petitioner, Sri.Sojan Micheal, learned Counsel for the 2 nd respondent as well as Sri.M.C.Ashi, learned Public Prosecutor.
6. PW7 to PW14 were examined as early as on 15.03.2017.
On the very same date, a petition was filed by the prosecution under Section 311 Cr.P.C. to examine an additional witness as the 15 th witness. However, the trial got delayed due to the non-appearance of PW15.
7. A perusal of the proceedings sheet produced as
Annexure A4 reveals that the accused was present on most of the posting dates. However, PW15 could not be procured. Thereafter, PW15 was examined on 16.10.2023 and 30.10.2023, during which time petitioner filed an an application under Section 311 Cr.P.C. seeking to recall PW7 to PW14.
8. The Prosecutor submitted that due to the long lapse of
time, some of the witnesses out of PW7 to PW14 would have expired rendering it practically impossible to produce them for cross examination. However, that by itself cannot be a reason to refuse the application of the petitioner, especially in the light of a new
witness introduced and examined by the prosecution as PW15. Whether petitioner’s defence would be prejudiced or not is a matter, which cannot be decided at this stage. However, since PW15 was not initially arrayed as a witness in the Police report and was subsequently brought in as an additional witness, I am of the view that interests of justice entails this Court to permit the petitioner to cross examine those witnesses who are available and who were examined as PW7 to PW14.
9. In the result, the learned Additional Chief Judicial
Magistrate is directed to recall PW7 to PW14 in C.C.No.1217/2008, as expeditiously as possible, and complete the trial within an outer time limit of three months from the date of receipt of a copy of this judgment. It is clarified that if in case, any of the witnesses, PW7 to PW14 are unavailable due to their death, the petitioner will not be entitled to claim any benefit out of their absence for cross examination.
sd/ BECHU KURIAN THOMAS JUDGE jm/ APPENDIX OF CRL.MC 711/2024 PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE CHARGE SHEET IN C.C NO. CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM Annexure A2 COPY OF THE ORDER IN CMP NO. 1998/2023 DATED 10-07-2023 OF THE ACJM COURT, ERNAKULAM Annexure A3 CERTIFIED COPY OF THE ORDER IN C.MP. NO.1988/2023 DATED 04-12-2023 OF ACJM COURT, ERNAKULAM Annexure A4 THE CERTIFIED COPY OF THE "B DIARY"
PROCEEDINGS IN C.C NO. 1217/2008 ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM