Sujatha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** **CRL.MC NO. 3159 OF 2021** **CRL. M.P. 517/2020 IN C.C. NO. 1147/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAKKANAD ERNAKULAM** ## **PETITIONER:** **SUJATHA, AGED 56 YEARS W/O. SUNILKUMAR, RESIDING AT AVINIKATTUMANA HOUSE, NEAR MSP CAMP, MALAPPURAM VILLAGE, MALAPPURAM.** **BY ADVS.SRI.RAJIT SRI. ARJUN S.** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA 682031.** ## **BY SRI. HRITHWIK C.S., SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALY HEARD ON 15.09.2021, THE COURT ON 05.10.2021 PASSED THE FOLLOWING:** Crl.M.C.No.3159 OF 2021 2 ## **ORDER** Petitioner is the first accused in C.C. No. 1147/2015 pending before the Judicial First Class Magistrate Court, Kakkanad, where she, along with others faces allegations under Sections 409, 467, 468 and 420 of the Indian Penal Code. That case was taken on file on a final report laid in Crime No. 355/2013 of Thadiyittaparambu Police Station. 2. The precise allegation of the prosecution is that during 2013, the first accused/petitioner was the Chief Manager of State Bank of Travancore, Edathala branch. At that time, between January and April of 2013 four gold loans were granted in favour of one Aparna and Sreelatha, who are nieces of the petitioner. It is alleged that such gold loans were sanctioned by the petitioner in the name of said Aparna and Sreelatha without their knowledge, for her own purpose, showing spurious gold as as security. The crime was detected after the transfer of the petitioner from Edathala to Malappuram. Similar incidences were noticed in Malappuram and then on the direction of the Regional Office, a verification was done in Edathala and then it Crl.M.C.No.3159 OF 2021 3 revealed that applications for four gold loans were made in the own handwriting of the Manager herself and thus with the connivance of some other members of the staff and the appraiser, by showing spurious gold, an amount of Rs.1,75,000/- was availed as loan. On the basis of a report received in the Regional Office from the successor Manager of the Bank, a complaint was preferred before the Police and thus the crime was registered and after investigation, charge sheet was laid in 2014. Now the trial of the case is in progress. Some of the witnesses were examined. PWs 1 and 2 were fully examined. Thereafter, CWs 3 to 7 were partly examined and whenever opportunities were afforded, the counsel for the petitioner did not cross examine them and thereafter, at the fag end of the proceedings, he moved application under Section 311 of the Cr.P.C., for recalling the witnesses. By the impugned order dated 26.02.2021, on Crl.M.P. No. 517/2020, the learned Magistrate dismissed the application and aggrieved by the same, the petitioner has moved this Court under Section 482 of the Cr.P.C. 3. I heard the learned counsel for the petitioner and also Crl.M.C.No.3159 OF 2021 4 the learned Public Prosecutor. I have also gone through the documents made available along with the Crl.M.C. 4. Materials produced by the petitioner show that examination of witnesses had commenced on 31.05.2016, but so far all the witnesses are not examined. Even though chief examination of PW1 was conducted on 31.05.2016, cross examination was conducted only on 16.01.2020. Similarly, PW2 was examined in three stretches, i.e., on 31.05.2016, 11.03.2019 and 16.01.2020. The examination of other witnesses remain not completed and at last, the counsel for the petitioner moved application under Section 311 of the Cr.P.C., which was dismissed by the impugned order. 5. The learned counsel for the petitioner submits based on Annexure A8 copy of proceedings paper of the court that trial of the case stands delayed for numerous reasons and everything cannot be attributed on the petitioner. According to him, from February 2020 onwards, due to the pandemic, regular sitting was not possible and it was being adjourned by notification. The learned counsel has sought indulgence of the court and sought Crl.M.C.No.3159 OF 2021 5 for quashment of Annexure A1 order by which the application under Section 311 of the Cr.P.C. stands dismissed. 6. After carefully going through the records, I have no doubt that calculated efforts have been made by the defence to prolong the case. As mentioned earlier, the examination of witnesses had commenced on 31.05.2016 and it is highly regrettable that even after more than five years, such a case could not be taken to its logical end. Many of the officials of the Bank have already retired from service and have now become senior citizens. Even though when they were made available for examination, on more than one occasion the counsel for the petitioner before the trial court refused to examine them. The learned Magistrate has observed that an adamant stand was taken and without valid reasons, the examination of the witnesses was not completed due to the failure of the counsel for the petitioner. At last, adjournment was granted on payment of cost of Rs. 750/each. Still, the counsel did not cross examine such witnesses. I have no doubt that this is not a fair practice expected from a lawyer who is an officer of the court. He has a duty to assist the Crl.M.C.No.3159 OF 2021 6 court in disposing of the case at the earliest. There are reasons to think that this is a strategy adopted by the petitioner to compel the witnesses to get exhausted and then take advantage of such a situation. That cannot be appreciated in right earnest. A studied indifference can be noticed on the part of the defence in prolongating the matter. 7. All the same, the are two reasons impel this Court to interfere with the order. Firstly, at least from March, 2020 onwards due to restrictions imposed in pandemic, functioning of the courts are not on right track. Therefore, the delay caused from March, 2020 cannot be attributed to any one. Secondly, we have to take note of the fact that the golden rule is to dispose of a case on merits. In this connection, I am reminded of an observation of the Hon’ble Supreme Court in **Rajaram Prasad Yadav v. State of Bihar and Another [(2013) 14 SCC 461]** where the court has cautioned all the trial Judges that the court should be conscious of the position that after all the trial is basically for the suspects and the court should always afford an opportunity to them, in the fairest manner possible. In that parity Crl.M.C.No.3159 OF 2021 7 of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should always bear in mind that improper or capricious exercise of such a discretionary power may lead to undesirable results. 8. Of course the petitioner was adopting dilatory tactics before the trial court. But if the court takes a decision and convict the accused basing on the unchallenged version of witnesses, necessarily that will be taken up before the appellate court and that in turn will clearly give edge to the accused to say that she was not given opportunity to cross examine etc. and in such cases, the inevitable consequence is that the matter would end in a remand which may take more time and will result in inconveniences to all concerned. Therefore, it is always better to give one more opportunity to the petitioner to give her evidence. Moreover, the quest of all trials is to find the truth; towards the pursuit of finding truth the basic foundation of an adversarial system of justice, cross examination of witness is the most sacrosanct right of the accused. In spite of all the dilatory tactics Crl.M.C.No.3159 OF 2021 8 adopted by the petitioner, I feel that it is only expedient to afford one more opportunity to the petitioner to adduce evidence. 9. In the result, Annexure A1 order is set aside, on the following conditions:- - i) The petitioner shall make a deposit of cost of Rs. 5,000/before the trial court, which shall be credited in the account of the District Legal Service Authority, Ernakulam; - ii) The petitioner shall bear the daily batta of all witnesses recalled, at the minimum rate of Rs. 1,000/-, which can vary depending upon the distance travelled by the witnesses, which can be fixed by the trial court. - iii) The amount of Rs. 5,000/- shall be deposited in court within 15 days from the date of receipt of a copy of this order. If any of the condition is not complied, the trial court can proceed with the case as though the order under challenge is upheld. 10. Before parting with, it is shocking to see that a trial commenced before the trial court continued even after five years and five months. The Apex Court have frowned upon such a practice on numerous occasions. I have no doubt that the learned Magistrate shall take all out efforts to dispose of the case, at the Crl.M.C.No.3159 OF 2021 9 earliest. The parties shall appear before the trial court on 22.10.2021 and thereafter, the entire examination of witnesses shall be completed within a period of one month. Crl.M.C. is disposed of as above **SD/K.HARIPAL** **JUDGE** **DCS/04.10.2021** Crl.M.C.No.3159 OF 2021 10 ## **APPENDIX** ## **PETITIONER'S ANNEXURES** |**ANNEXURE**|**1**|**A TRUE COPY OF THE ORDER IN CRL M P**| |---|---|---| |||**517/2020 IN C C 1147/2015 OF THE JUDICIAL**| |||**FIRST CLASS MAGISTRATE COURT KAKKANAD DATED**| |||**26.02.2021.**| |**ANNEXURE**|**2**|**A TRUE COPY OF THE DEPOSITION OF CW1 AS PW1**| |||**DATED 31.05.2016.**| |**ANNEXURE**|**3**|**A TRUE COPY OF THE DEPOSITION OF CW2 AS PW2**| |||**DATED 31.05.2016.**| |**ANNEXURE**|**4**|**A TRUE COPY OF THE DEPOSITION OF CW5 AS PW3**| |||**DATED 11.03.2019.**| |**ANNEXURE**|**5**|**A TRUE COPY OF THE DEPOSITION OF CW7 AS PW4**| |||**DATED 11.03.2019.**| |**ANNEXURE**|**6**|**A TRUE COPY OF THE DEPOSITION OF CW3 AS PW3**| |||**DATED 17.09.2019.**| |**ANNEXURE**|**7**|**A TRUE COPY OF THE DEPOSITION OF CW4 ( PW**| |||**NOT MARKED), DATED 17.09.2019.**| |**ANNEXURE**|**8**|**A TRUE COPY OF THE PROCEEDINGS CITED IN THE**| |||**LEARNED MAGISTRATE SUBSEQUENTLY CLOSED**| |||**PROSECUTION EVIDENCE AND THE TRIAL IS NOW**| |||**POSTED TO 21.07.2021.**| |**ANNEXURE**|**9**|**A TRUE COPY OF THE JUDGMENT IN M.C.R. C.NO.**| |||**12712/2014 BEFORE THE HONBLE HIGH COURT OF**| |||**MADHYA PRADESH DATED 25.09.2014.**|