P. N. Gopinathan Nair v. Raman Nair and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941** **Crl.Rev.Pet.No.795 OF 2019** **AGAINST THE JUDGMENT IN CRA 272/2013 DATED 12-03-2019 OF ADDITIONAL SESSIONS COURT-I,KOTTAYAM** **AGAINST THE JUDGMENT IN ST 149/2012 DATED 11-07-2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS IV, KOTTAYAM** ## **PETITIONER/RESPONDENT/COMPLAINANT:** **P.N.GOPINATHAN NAIR AGED 74 YEARS** **S/O. PADMANABHA PILLAI, RESIDING AT PARAYIL HOUSE, PARIPPU P.O, KOTTAYAM-686 014** **BY ADVS.** **SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN DR.SHERINE JOSEPH** ## **RESPONDENTS/ACCUSED:** - **1 RAMAN NAIR @ AYARKUNNAM RAMAN NAIR PARAMBUMTHOTTATHIL HOUSE, AYARKUNNAM P.O,KOTTAYAM686 564** - **2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **R1 BY ADV. SRI.A.K.HARIDAS SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.02.2020, THE COURT ON 03.03.2020 PASSED THE FOLLOWING:** Crl.R.P.No.795/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.795 of 2019 -----------------------------------------Dated this the 3[rd] day of March, 2020 ## **O R D E R** The revision petitioner is the complainant and the first respondent is the accused in the case S.T.No.149/2012 on the file of the Court of the Judicial First Class Magistrate-IV, Kottayam. 2. The petitioner and the first respondent shall be hereinafter referred to as the complainant and the accused for the sake of convenience. 3. The case of the complainant is as follows: The accused and his wife borrowed an amount of Rs.12,00,000/from the complainant promising that they would repay the amount as and when demanded. When the complainant demanded the amount, the accused issued a cheque dated 02.02.2009 for Rs.12,00,000/- in favour of the complainant, in discharge of the liability. The complainant presented the cheque Crl.R.P.No.795/2019 3 in the bank. It was returned unpaid for the reason that there was no sufficient amount in the account of the accused. The complainant sent a lawyer notice to the accused demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount of the cheque. 4. During the trial of the case, the complainant got himself examined as PW1 and two other witnesses were also examined on his side as PW2 and PW3. Exts.P1 to P6 documents were also marked on his side. DW1 was examined on the side of the accused and Ext.D1 series documents were marked on his side. Ext.X1 series documents were also marked in the case. 5. After appreciating the evidence adduced by the parties, the trial court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and convicted him thereunder. The trial court sentenced him to undergo simple imprisonment for a period of three months and also directed him to pay an amount of Rs.12,00,000/- as compensation to the complainant and in default of payment of compensation, to Crl.R.P.No.795/2019 4 undergo simple imprisonment for a period of sixty days. 6. The accused filed Crl.A.No.272/2013 before the Court of Session, Kottayam challenging the order of conviction and sentence passed against him by the trial court. 7. As per the order dated 04.07.2018, the appellate court allowed the appeal filed by the accused and remanded the case to the trial court with a direction to take fresh evidence and dispose of the case in accordance with law. 8. It is pertinent here to note that, during the pendency of the appeal, an application was filed by the accused for sending the cheque for expert opinion. The aforesaid application was allowed by the appellate court and the cheque was sent for expert opinion. The report of the expert was received by the appellate court. Thereafter, the accused filed an application before the appellate court for issuing summons to the expert for examining him as a witness. 9. The complainant challenged the judgment dated 04.07.2018 of the appellate court by filing Crl.R.P.No.1278/2018 before this Court. During the hearing of the aforesaid revision Crl.R.P.No.795/2019 5 petition, it was submitted before this Court that the judgment of the appellate court was rendered without hearing the counsel for both parties. Taking into consideration the aforesaid submissions made by the counsel on both sides, this Court set aside the judgment dated 04.07.2018 of the appellate court with a direction to that court to dispose of the appeal in accordance with law after affording a reasonable opportunity to both parties of being heard. 10. After the remand of the appeal, the appellate court again considered the appeal. The learned Additional Sessions Judge, as per the judgment dated 12.03.2019, allowed the appeal and again remanded the case to the trial court for taking fresh evidence and for disposal in accordance with law. 11. The judgment dated 12.03.2019 passed by the appellate court in Crl.A.No.272/2013 is challenged by the complainant in this revision petition. 12. The only point for consideration in this revision petition is whether the appellate court was justified in remanding the case to the trial court granting opportunity to the parties to Crl.R.P.No.795/2019 6 adduce fresh evidence. 13. Heard learned counsel for the revision petitioner/ complainant and also the first respondent/accused. 14. Learned counsel for the revision petitioner contended that the learned Additional Sessions Judge has disposed of the appeal for the second time practically rendering the same judgment which was rendered on the first occasion. Learned counsel for the revision petitioner also contended that there was no necessity to adduce fresh evidence in the case and if at all the appellate court was of the view that additional evidence was required, it was not necessary to remand the case to the trial court. Learned counsel for the revision petitioner further contended that the appellate court omitted to take into consideration the fact that the suit filed by the complainant for realisation of money on the basis of the cheque was decreed by the trial court and the challenge against the decree passed against him was taken by the accused upto the Hon'ble Supreme Court but without any success. 15. _Per contra_ , learned counsel for the first respondent Crl.R.P.No.795/2019 7 contended that the report of the expert was before the appellate court and the accused had filed application for examination of the expert and therefore, the appellate court was justified in remanding the case to the trial court for taking fresh evidence. 16. Section 391 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') states that in dealing with any appeal, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. 17. Additional evidence may be necessary for a variety of reasons. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment in appeal but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial (See **Rajeswar Prasad Misra v. State** Crl.R.P.No.795/2019 8 ## **of West Bengal : AIR 1965 SC 1887** ). 18. The object of Section 391 of the Code is not to fill in lacuna, but to subserve the ends of justice. Admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Though wide discretion is conferred on the Court, the same has to be exercised judicially and after recording of reasons. Recording of reasons is a condition precedent for exercise of power under Section 391 of the Code (See **Rambhau v. State of Maharashtra : AIR 2001 SC 2120** ). 19. The word "necessary" used in Section 391(1) of the Code is to mean necessary for deciding the appeal. Power to take additional evidence under Section 391 of the Code is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. There are no fetters on the power under Section 391 of the Code (See **Sukhjeet Singh v. State of Uttar Pradesh : 2019 (2) SCALE 104** ). 20. A bare reading of the provision contained in Section 391 of the Code makes it clear that the section invests the appellate Crl.R.P.No.795/2019 9 court with the power to record additional evidence, provided it is satisfied, for the reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be decided on the evidence which was before the trial court, power under the section has to be exercised with caution and circumspection so as to meet the ends of justice and not as a matter of course. 21. In the instant case, the appellate court had sent the cheque for expert opinion. The report of the expert was received in the appellate court. The accused filed application before the appellate court for examination of the expert. If the appellate court was of the view that it was absolutely necessary to examine the expert for admitting in evidence his report, it could have examined the expert in that court itself. Merely for that purpose, it was not necessary to remand the entire case to the trial court with a direction for taking fresh evidence in the case and dispose of the case afresh. 22. The impugned judgment of the appellate court does not reveal, except the report of the expert, any other additional Crl.R.P.No.795/2019 10 evidence had to be adduced in the case by the parties. The appellate court has also not recorded any reasons for allowing additional evidence, other than the expert report, to be adduced in the case at the appellate stage. As noticed earlier, the power under Section 391(1) of the Code shall not be exercised as a matter of routine. 23. In the above circumstances, I am of the view that, if at all the report of the expert in evidence was necessary for the disposal of the appeal, examination of the expert should have been done by the appellate court itself. The order of the appellate court remanding the entire case for taking fresh evidence and for fresh disposal by the trial court is not legal and proper and it is liable to be set aside. 24. Since the order of remand made by the appellate court is found to be illegal, this Court cannot dispose of the case on merits but it can only remand the appeal to the appellate court for fresh disposal of merits (See **Susanta Dey v. Babli Majumdar : AIR 2019 SC 1661** ). Crl.R.P.No.795/2019 11 25. Consequently, the revision petition is allowed. The impugned judgment dated 12.03.2019 of the appellate court in Crl.A.No.272/2013 is set aside and the appeal is restored to the file of the Court of Session, Kottayam. The appeal shall be disposed of by the appellate court afresh on merits. If it is necessary to take additional evidence in the case, the appellate court itself shall take such evidence. If for any reason, the Principal Sessions Judge finds it inconvenient to hear and dispose of the appeal by himself, the appeal shall be made over to any Additional Sessions Judge, other than the Additional Sessions Judge who had earlier heard the appeal twice. The parties shall appear before the Principal Sessions Court, Kottayam on 20.03.2020. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr Crl.R.P.No.795/2019 12 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE I THE JUDGMENT DATED 4.7.2018 IN CRL. APPEAL NO. 272/2013 OF THE ADDL. SESSIONS JUDGE-I, KOTTAYAM.** **ANNEXURE II** **TRUE COPY OF THE ORDER DATED 26.11.2018 IN CRL. REV. PETN NO. 1279/2018 OF THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY PS TO JUDGE