Kerala High Court
Binesh Kumar vs Ambili on 6 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
CRL.REV.PET NO. 210 OF 2022
ST.NO.11/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,
MAVELIKKARA
REVISION PETITIONER/APPELLANT/COMPLAINANT:
BINESH KUMAR
AGED 42 YEARS
SON OF SARASAMMA, SARASAMMA BHAVANAM, PONAKAM MURI,
THEKKEKARA VILLAGE, ALAPUZHA - 690107.
BY ADV. V.VIJITHA
RESPONDENT/RESPONDENT/ACCUSED & STATE:
1 AMBILI
AGED 44 YEARS
WIFE OF REGHU, UTHRADAM, PONAKAM MURI,
THEKKEKARA VILLAGE, ALAPUZHA - 690107.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
R2 BY SENIOR PUBLIC PROSECUTOR SRI.RENJIT GEORGE
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 06.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 210 OF 2022 2
ORDER
This revision petition, filed under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter referred to as the `Cr.P.C' for convenience), is at the instance of the complainant in S.T.Nos.11/2019, 12/2019 and 13/2019 on the files of the Judicial First Class Magistrate Court-I, Mavelikkara.
2. Prayer in this revision petition is to set aside the common order of the Judicial First Class Magistrate Court-III, Mavelikkara, in C.M.P.No.10/2022 in S.T.No.11/2019, C.M.P.No.11/2022 in S.T.No.12/2019 and C.M.P.No.14/2022 in S.T.No.13/2019, dated 16.02.2022.
3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
4. Though notice was served upon the first respondent, she did not appear.
5. It is submitted by the learned counsel for the revision petitioner that, as per the impugned order, the learned Magistrate allowed joint trial of S.T.Nos.11/2019, 12/2019 and 13/2019, considering S.T.No.11/2019 as the leading case. According to the learned counsel for the revision petitioner, the order is illegal, since joint trial of two different offences committed by two CRL.REV.PET NO. 210 OF 2022 3 different persons, cannot be tried jointly and in the present case, though the complainant and the accused in S.T.Nos.12/2019 and 13/2019 are one and the same, insofar as S.T.No.11/2019 is concerned, the accused is the wife of the accused in the other cases. It is argued by the learned counsel for the revision petitioner further that, going by the mandate of Section 223(d) of the Cr.P.C., also persons accused of different offences committed in the same course of the same transaction can only be jointly tried and in the case on hand, the transaction insofar as S.T.No.11/2019 is concerned, it is not part of the same transaction. Therefore, the learned Magistrate went wrong in allowing joint trial and as such, the said order requires interference at the hands of this Court.
6. On perusal of complaints in S.T.Nos.12/2019 and 13/2019, the specific case of the complainant is that, the accused and his wife, (the wife is the accused in S.T.No.11/2019), while conducting a jewellery under the name and style, 'A.R.Jewellery', Mavelikkara, having prior acquaintance with the complainant, who was engaged in private work of building residential houses and other building structures, borrowed money from the complainant. The further allegation in S.T.Nos.12/2019 and 13/2019 is that, on verification of the balance outstanding pertaining to the loan availed by the accused in S.T.Nos.12/2019 and 13/2019, it has been arrived at to the tune of CRL.REV.PET NO. 210 OF 2022 4 Rs.14,00,000/- (Rupees Fourteen Lakh Only). As per settlement entered into on 20.5.2017, the accused in S.T.Nos.12/2019 and 13/2019, Shri.Reghu, had issued two different cheques for Rs.7,00,000/- (Rupees Seven Lakh Only) each and the same are the subject matters of prosecution in S.T.Nos.12/2019 and 13/2019.
7. On perusal of the complaint in S.T.No.11/2019, it has been contented that the loan liability of Smt.Ambily, the accused in S.T.No.11/2019, was settled between the complainant and the accused (Ambili) on 20.5.2017 and accordingly, the accused issued cheque for Rs.30,00,000/- (Rupees Thirty Lakh Only) in favour of the complainant.
8. Thus, it appears that the averments in the complaints in S.T.Nos.12/2019 and 13/2019 are to the effect that loan liability between the complainant and Shri.Reghu was settled on 20.5.2017 for Rs.14,00,000/- (Rupees Fourteen Lakh Only) and accordingly, Shri.Reghu issued two cheques each separately for Rs.7,00,000/- (Rupees Seven Lakh Only). Similarly, in S.T.No.11/2019, the allegation is to the effect that the loan liability between the complainant and Smt.Ambily also was settled on the same day and in order to discharge the loan liability, Smt.Ambily also issued cheque for Rs.30,00,000/- (Rupees Thirty Lakh Only).
CRL.REV.PET NO. 210 OF 2022 5
9. In this matter, the court below, as per the impugned order, allowed the petition filed by the accused to have joint trial of these matters on the finding that the transactions in these cases are interconnected and the basic bundle of facts alleged by the petitioner, are one and the same.
10. The trial court given emphasis to Section 220(1) read with Section 223(d) of the Cr.P.C., while allowing joint trial of these matters.
11. On perusal of the complaints, though the complainant alleged that the husband and wife (accused in the above three cases) settled the loan liability on 20.5.2017, the loan liability shown to be independent liability and not joint liability as per the averments of the complaint. If so, joint trial of two cases, viz., S.T.Nos. 12/2019 and 13/2019 is very much essential and the same is even not disputed by the complainant also. However, as far as joint trial of S.T.No.11/2019 is concerned, the same appears to be a separate loan transaction between the complainant and accused and therefore, it is not necessary to have joint trial of the said case also, along with the other two cases.
In view of the matter, the order impugned requires interference. Accordingly, the same is interfered and modified holding that trial of S.T.Nos.12/2019 and 13/2019 shall go together and the trial of S.T.No.11/2019 CRL.REV.PET NO. 210 OF 2022 6 shall go separately.
The revision is allowed, as indicated above.
Sd/-
A. BADHARUDEEN JUDGE Bb CRL.REV.PET NO. 210 OF 2022 7 APPENDIX OF CRL.REV.PET 210/2022 PETITIONER'S ANNEXURES ANNEXURE A TRUE COPY OF THE C.M.P NO. 6027/2018 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, MAVELIKARA.
ANNEXURE B TRUE COPY OF THE PETITION BEING CRL.MP 10/2022 IN S.T.11/2019 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MAVELIKARA.
ANNEXURE C TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN CRL.MP 10/2022 IN S.T.11/2019 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, MAVELIKARA ANNEXURE D TRUE COPY OF THE COMPLAINT IN C.M.P NO.
6026/2018 IN S.T NO.12/2019 OF THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
MAVELIKARA
ANNEXURE E TRUE COPY OF THE COMPLAINT IN C.M.P
NO.6025/2018 IN S.T NO.13/2019 OF THE
HON'BLE JUDICIAL FIRST CLASS MAGISTRATE
COURT-I, MAVELIKARA
RESPONDENTS'
NIL
ANNEXURES
//TRUE COPY//
PA TO JUDGE