Allowed

Viswanathanpillai.v.N v. Sunil Kumar.C.D

Kerala HC10 Aug 2023OP(Crl.)/342/2023

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal original petition filed under Article 227 challenging a dismissal of a Section 311 CrPC application. The court set aside the lower court's order and permitted the witness to reappear and tender a specific letter as evidence to prevent prejudice to the complainant.

What did the court decide?

Set aside the impugned order; allowed PW1 to be re-called to tend evidence by producing Ext.P3(a).

Viswanathanpillai.v.N Vs Sunil Kumar.C.D — Civil Procedure and Limitation | Kerala HC (2023)

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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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THURSDAY, THE 10^TH DAY OF AUGUST 2023 / 19TH SRAVANA, 1945

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OP(CRL.) NO. 342 OF 2023

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AGAINST THE ORDER/JUDGMENTST 1884/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA PETITIONER/COMPLAINANT:

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VISWANATHANPILLAI.V.N AGED 78 YEARS S/O NARAYANAPILLAI, VALAKOTTU HOUSE, THUMBAMON THAZHAM P.O., MEZHUVELI VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA., PIN - 689625 BY ADVS. M.PROMODH KUMAR MAYA CHANDRAN

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RESPONDENT/PETITIONER/ACCUSED:

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SUNIL KUMAR.C.D AGE NOT KNOWN TO THE PETITIONER, S/O DAMODARAN NAIR, THEKKECHANGAYIL HOUSE, MYLAPRA TOWN P.O., PATHANAMTHITTA., PIN - 689678 BY ADVS. Murleekrishnan R D.KISHORE(K/000608/1993) MEERA GOPINATH(K/001803/1999.)

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THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(CRL.) NO. 342 OF 2023

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JUDGMENT

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Dated this the 10^th day of August, 2023

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This Original Petition (Criminal) has been filed under Article 227 of the Constitution of India by the complainant in S.T.No.1884/2016 on the files of the Judicial First Class Magistrate Court-I, Pathanamthitta challenging dismissal of CMP No.590/2023 in the above case as per order dated 30.03.2023.

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Among the prayers in the petition, the main prayer is to re-call PW1 for the purpose of tendering a letter alleged to be issued by the accused in favour of the complainant to show admission regarding the transaction.

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The learned counsel for the petitioner submitted that such a document written in the handwriting of the respondent should have been allowed to be tendered in evidence. Otherwise, prejudice would be caused to the complainant.

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Whereas the learned counsel for the respondent submitted that during cross-examination, when specific questions were asked to the complainant as to the execution of the agreement or any documents obtained from the accused at

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OP(CRL.) NO. 342 OF 2023

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the time of receipt of Rs.1,00,000/- (Rupees one lakh only), his answer was negative and in view of the matter, the learned Magistrate dismissed the petition.

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In this matter, the copy of the document said to be made as part of evidence by recalling PW1 is produced as Ext.P3(a). The genuineness, authenticity and probative value of the document are matters of evidence to be decided by the Judicial First Class Magistrate Court, after hearing the accused in this regard. However, in the interest of justice, I am inclined to set aside the order impugned by allowing the Original Petition.

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Accordingly, this Original Petition (Criminal) stands allowed and PW1 is allowed to be re-called for the purpose of adducing evidence by tendering Ext.P3(a) and no other documents.

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Registry is directed to forward a copy of this order to the court below concerned, within two weeks for information and compliance.

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Sd/A. BADHARUDEEN JUDGE

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nkr

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OP(CRL.) NO. 342 OF 2023

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APPENDIX OF OP(CRL.) 342/2023

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE PETITIONER'S COMPLAINT IN S.T.NO.1884/2016 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, PATHANAMTHITTA

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Exhibit P2 TRUE COPY OF THE PETITIONER'S AFFIDAVIT IN LIEU OF CHIEF EXAMINATION IN S.T.NO.1884/2016 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, PATHANAMTHITTA

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Exhibit P3 TRUE COPY OF THE PETITIONER'S C.M.P.590/2023 FILED UNDER SECTION 311 OF CR.P.C. DATED 03-02-2023 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURTI, PATHANAMTHITTA

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Exhibit P3(a) TRUE COPY OF THE LIST OF DOCUMENTS DATED 03-02-202 WITH THE LETTER WRITTEN BY THE RESPONDENT TO THE PETITIONER PRODUCED ALONG WITH EXT.P3,

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Exhibit P4 TRUE COPY OF THE COUNTER STATEMENT FILED BY RESPONDENT IN EXT.P3 PETITION

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Exhibit P5 TRUE COPY OF THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PATHANAMTHITTA IN C.M.P.NO. 590/2023, DATED 30-03-2023.

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RESPONDENT'S EXHIBITS : NIL

Viswanathanpillai.v.N v. Sunil Kumar.C.D

Case brief

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Viswanathanpillai.v.N v. Sunil Kumar.C.D

Case brief

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