Allowed

Ravikumar v. State of Kerala

Kerala HC5 Sept 2019Crl.MC/5393/2018

Case brief

AI extract

What is this about?

This criminal misc. case quashed a lower court order dismissing a petition to recall a bank manager. The High Court held that summoning the manager to examine bank accounts proving payments is necessary for the accused's defense and is distinct from the earlier rejected application to recall the accused.

What did the court decide?

Impugned order set aside; C.M.P No.4646/2018 remanded to court below for fresh consideration within two months.

Ravikumar Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941

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Crl.MC.No.5393 OF 2018

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AGAINST THE ORDER/JUDGMENT IN ST 1274/2015 DATED 31-07-2018 OF CHIEF JUDICIAL MAGISTRATE PALAKKAD

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PETITIONER:

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RAVIKUMAR

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PROPRIETOR, SREE HERBALS, SNG MANDHIRAM, PANGAPPARA, KARYAVATTAM, THIRUVANANTHAPURAM DISTRICT

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BY ADV. SRI.SHAJIN S.HAMEED

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RESPONDENT/STATE&COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM

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2 M/S REMYA ADVERTISING, REPRESENTED BY ITS MANAGING PARTNER, SRI. SUNDARKUMAR, S/O. PANKAJAKSHAN NAIR, RAMYA CHAMBERS, METTUPALAYAM STREET, PALAKKAD PIN678001

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R2 BY ADV. K.R.VINOD R2 BY ADV. M.S.LETHA

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PP C.K.PRASAD

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.5393 OF 2018

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ORDER

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The petition on hand is filed seeking to set aside an order passed by Chief Judicial Magistrate Court, Palakkad on 31.07.2018 in C.M.P No.4646/2018. C.M.P No.4646/2018 is an application filed in a prosecution initiated by the 2^nd respondent as S.T No.1274/2015 before the aforesaid court. In the application, an order was passed by the Chief Judicial Magistrate Court, Palakkad to the following effect:

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“Counter filed. Heard. Petitioner now seeks to re-open evidence to examine Branch Manager, Union Bank of India, Trivandrum to prove certain payments disclosed through cross of DW3. The petitioner moved C.M.P 3721/18 to recall DW3 which was dismissed by the court on 22.06.2018. present petition is to circumvent order passed in C.M.P 3721/2018. record shows the defence evidence started as early as on 22.02.2015. There should be an end to litigation. In these circumstances prayer refused. Petition dismissed.”

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The copy of the order is appended to the petition on hand as Annexure-F. Aggrieved by Annexure-F order extracted above, the accused has approached this court in challenge. Sri.Shajin S. Hameed, the learned counsel for the petitioner has

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Crl.MC.No.5393 OF 2018

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contended that the court below is highly unjustified in dismissing the application filed by him seeking to re-call the Bank Manager and summon the Bank Accounts, to examine him and to mark the documents, through him. According to him, the accused was examined before the court below as DW3 and during cross examination, by counsel for the complainant, payments claimed as made by the accused to the complainant on 21.12.2009, 06.04.2010, 01.06.2010, 16.06.2010, 22.07.2010, 28.08.2010 and 13.09.2010, were attempted to be controverted.

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It is therefore, necessary for him to summon the Bank Manager and also the necessary statement of Accounts, which will reveal the payments made on the respective dates and to mark those documents in evidence to establish the defence of the accused and that what was stated by the complainant is against truth. The court below failed to advert to the merits of the pleadings in the application and has dismissed the same for the reason that an application moved by the petitioner as C.M.P No.3721/2018 earlier seeking to re-call DW3 (accused) was dismissed on 22.06.2018. The court has observed that the application now filed wherein the

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Crl.MC.No.5393 OF 2018

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impugned order is passed is only to circumvent the order passed in C.M.P No.3721/2018.

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As already stated, the earlier application was moved by the petitioner to re-call DW3 and to re-examine him. The present application is to summon the Bank Manager and the relevant statement of accounts and to got those documents marked through the Bank Manager.

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Context being different, there is absolutely no justification in observing that the application on hand is filed only to circumvent the order already passed by the court in C.M.P No.3721/2018. It appears upon a perusal of the relevant materials made available by the petitioner that the summoning of the Bank Manager and marking of statement of accounts to establish the payments made by the accused to the complainant on respective dates is necessary for him to establish the defence taken in the prosecution on hand.

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In the light of the above discussion, the order under challenge deserves to be set aside. In the result, Crl.M.C stands allowed and Annexure-F order is set aside.

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Crl.MC.No.5393 OF 2018

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C.M.P No.4646/2018 filed by the petitioner in S.T No.1274/2015 shall be considered by the court below afresh and pass orders in the light of the discussion hereinabove made, within two months from the date of this order. The court below shall also

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see that the respondent is provided with adequate opportunity to cross-examine the witness.

Sd/-

MARY JOSEPH

JUDGE

Crl.MC.No.5393 OF 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A PHOTOCOPY OF THE COMPLAINT S.T.NO. 1274/2015 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD

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ANNEXURE B PHOTOCOPY OF THE PETITION CMP NO. 3721/2018 IN S.T.NO. 1274/2015 OF THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD ANNEXURE C PHOTOCOPY OF THE ORDER DATED 22/06/2018 IN CMP NO. 3721/2018 IN S.T.NO. 1274/2015 OF THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD ANNEXURE D PHOTOCOPY OF THE ORDER DATED 19/07/2018 IN CRL.M.C.NO. 4605/2018 OF THIS HONORABLE COURT ANNEXURE E PHOTOCOPY OF THE PETITION CMP NO. 4646/2018 IN S.T. NO. 1274/2018 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD ANNEXURE F CERTIFIED COPY OF THE ORDER DATED 31/07/2018 IN CMP NO. 4646/2018 IN S.T.NO. 1274/2015 OF THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD

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RESPONDENT'S/S EXHIBITS:NIL

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//TRUE COPY//

Ravikumar v. State of Kerala

Case brief

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Ravikumar v. State of Kerala

Case brief

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