Allowed

Shanil S., v. State of Kerala

Kerala HC18 Oct 2022Crl.MC/542/2022

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition filed by the 3rd accused under Section 482 Cr.P.C., the High Court set aside the impugned order of the Trial Court that dismissed an application to recall a prosecution witness for cross-examination, conceding that opportunity in the interest of justice and directing the Trial Court to facilitate the same within 15 days and dispose of the matter within two mont

What did the court decide?

The impugned order setting aside the application for recall of PW1 is set aside; Trial Court to recall PW1 for cross-examination within 15 days and dispose of the matter within two months.

Shanil S., Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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TUESDAY, THE 18^TH DAY OF OCTOBER 2022 / 26TH ASWINA, 1944

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CRL.MC NO. 542 OF 2022

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AGAINST THE ORDER/JUDGMENT CMP 200/2022 IN CC 351/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KALAMASSERY

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PETITIONER/3RD ACCUSED:

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SHANIL S., AGED 41 YEARS DIRECTOR, M/S. PARTHASARADHY PROPRIETOR PVT. LTD., 35/3076 A, IST FLOOR, MADAMPIL BUILDING, THAMMANAM MAIN ROAD, PALARIVATTOM, KOCHI 25. BY ADVS. DHANYA BABU M.SANTHI (K/868/2011)

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RESPONDENTS/STATE & COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. 2 RMC RE ADYMIX (INDIA) PRIVATE LIMITED, AMENDED AS "PRISM JOHNSON LIMITED" BINANIPURAM P.O., EDAYAR INDUSTRIAL AREA, PIN - 683 502, REPRESENTED BY ITS SENIOR BUSINESS MANAGER, SHELLY FERNANDES. SR.PP-SRI.RENJIT GEORGE

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C No. 542 of 2022

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ORDER

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Dated this the 18^th day of October, 2022

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In this petition filed under Section 482 of Code of Criminal Procedure (hereinafter referred as Cr.P.C.) the petitioner who is the 3^rd accused in C.C No. 351 of 2016 impugns order dated 11.01.2022 in C.M.P. No. 200 of 2022.

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The respondents herein are State of Kerala as well as the original complainant before the Trial Court. Heard the counsel appearing for the petitioner, learned Senior Public Prosecutor appearing for the State and the learned counsel appearing for the 2^nd respondent.

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It is submitted by the learned counsel appearing for the petitioner that, when the evidence of PW1 was rendered, the counsel for the petitioner/3^rd accused was engaged in another Court and therefore he failed to cross-examine PW1, where accused Nos. 1 and 2 already cross-examined PW1. Since it is necessary in the interest of justice to permit the 3^rd accused also to

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Crl.M.C No. 542 of 2022

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cross-examine PW1, the petitioner herein filed a petition under Section 311 of Cr.P.C. to reopen the evidence for the purpose of cross-examining PW1. But the Trial Court dismissed the same.

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It is argued by the learned counsel for the petitioner that, the petitioner has a case to contest and therefore cross-examination of PW1 is absolutely necessary to prove the defense of the petitioner.

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The learned counsel for the 1^st respondent would submit that, the petitioner failed to make use of the opportunity provided by the Court below by the Trial Court for cross-examining the witness in this case involving allegation of commission of offence punishable under Section 138 of the Negotiable Instruments Act. Further the petitioner has been playing delayed tactics. Therefore the Court below rightly dismissed the application. As such the impugned order does not require any interference.

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It is true that the inconvenience of the counsel

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was the reason put forth before the Trial Court to reopen

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Crl.M.C No. 542 of 2022

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the evidence and the learned Magistrate held that inconvenience of the counsel is not a reason for adjournment of the case and therefore there is no necessity to recall PW1.

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In this matter, what was asked by the petitioner/3^rd accused is one more opportunity to crossexamine PW1. In such a case, the Court below ought to have granted one more opportunity in the interest of justice. Since the Court below failed to provide an opportunity, I am inclined to set aside the order with liberty to the petitioner to cross-examine PW1. Therefore this Crl.M.C. stands allowed and the impugned order stands set aside.

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It is ordered that the Trial Court shall recall PW1 and provide opportunity for the 3^rd accused to cross-examine PW1, within a period of fifteen days from the date of receipt of a copy of this order, specifying the date of appearance of PW1 for the said purpose. It is specifically ordered that, the 3^rd accused shall make use of the said opportunity so provided. If the counsel for

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Crl.M.C No. 542 of 2022

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the 3^rd accused fails to cross-examining PW1, then the Trial Court can proceed further, treating that the petitioner has no interest to cross-examine PW1 and recording 'no cross'. Since the matter is of the year 2016, there shall be direction to the Judicial Magistrate of First Class, Kalamassery to dispose of the matter at the earliest, at any rate within a period of two months from the date of receipt of a copy of this order.

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Registry is directed to forward a copy of this

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order to the Trial Court for information and compliance within seven days.

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Sd/-

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A. BADHARUDEEN JUDGE

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SK/18.10

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Crl.M.C No. 542 of 2022

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APPENDIX OF CRL.MC 542/2022

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PETITIONER'S ANNEXURES

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ANNEXURE A1 TRUE COPY OF THE JOINT PROOF AFFIDAVIT FILED BY THE 2ND RESPONDENT. ANNEXURE A2 TRUE COPY OF THE C.M.P. NO. 200/2022 IN C.C. NO. 351/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE COURT FIRST CLASS, KALAMASSERY. ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 11.1.2022 IN C.M.P. NO. 200/2022 IN C.C. 351/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KALAMASSERY.

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RESPONDENTS' EXHIBITS: NIL

Shanil S., v. State of Kerala

Case brief

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Shanil S., v. State of Kerala

Case brief

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