Kerala High Court
Abdulla C.M vs Ibrahim on 12 June, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939
Crl.Rev.Pet.No. 685 of 2017 ()
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CRL.A.739/2011 OF SESSIONS COURT, THRISSUR.
CC 1462/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,CHAVAKKAD.
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REVISION PETITIONER/APPELLANT/COMPLAINANT:
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ABDULLA C.M, S/O.MOIDEEN,
AGED 60 YEARS, CHINNALI HOUSE,
ANDATHODE AMSOM, DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT.
BY ADV. SRI.M.PREMCHAND
RESPONDENT/RESPONDENT/ACCUSED & STATE:
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1. IBRAHIM, AGED 53 YEARS,
S/O.MUHAMMEDKUTTY HAJI, THALAKATT HOUSE,
ERAMANGALAM AMSOM DESOM, PONNANI TALUK,
MALAPPURAM DISTRICT - 673612
2. STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 12-06-2017 ALONG WITH CRRP.686/2017,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
mbr/
ALEXANDER THOMAS, J.
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Crl.R.P.Nos.685 & 686 of 2017
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Dated this the 12th day of June, 2017
O R D E R
In both these cases, the accused in the complaint preferred by the petitioner was acquitted by the trial court for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. Heard Sri.M.Premchand, learned counsel appearing for the revision petitioner/complainant and learned prosecutor appearing for R2/State. Though notice has been duly served on R1/accused, there is no appearance for that party.
3. Initially, a learned Single Judge of this Court in the judgment dated 30.10.2013 in Shibu Joseph and others v. Tomy.K.J. and others reported in 2013 (4) KHC 629 has held that in such cases involving private complaint, it is for the complainant, who is aggrieved by the judgment of acquittal rendered by the trial court, to prosecute Criminal Appeal before the Sessions Court. Later, another learned Single Judge of this Court had taken a contra position. Thereafter, the resolution of the correctness of the abovesaid conflicting views rendered in the Single Bench verdicts was considered by the Division Bench of Crl.R.P.Nos.685 & 686/17 ::2::
this Court in the judgment dated 11.4.2014 in Omana Jose and another v. State of Kerala and others reported in 2014 (2) KHC 277 (DB), wherein the Division Bench has conclusively held that the remedy in such cases for a complainant, who is aggrieved by the judgment of acquittal rendered by the trial court, is not by institution of a Criminal Appeal before the Sessions Court concerned, but by filing a petition seeking special leave of this Court in terms of Section 378(4) of the Cr.P.C. and then to file Criminal Appeal before this Court, after securing such special leave, so as to challenge the said judgment of acquittal.
The main contention of the petitioner is that the impugned judgments of acquittal in these cases were rendered on 30.9.2011 at a time when the abovesaid ruling of the learned Single Judge in Shibu Joseph's case (supra) was regulating the law governing the field and that therefore, their appeals were perfectly maintainable before the Sessions Court at that time, even though a subsequent Division Bench judgment had held otherwise. It is pointed out that the Criminal Appeals filed by the petitioner herein before the Sessions Court in these cases have been now returned on 28.6.2014 as not maintainable in view of the subsequent Division Bench verdict in Omana Jose's case (supra) and that the impugned order passed by the Sessions Court returning the Crl.R.P.Nos.685 & 686/17 ::3::
appeals is not maintainable, may be set aside and that this Court may direct the Sessions Court to entertain the appeals on merits.
4. It is not in dispute that the legal position settled by the learned Single Judge of this Court in Shibu Joseph's case (supra) has been overruled by the Division Bench of this Court in Omana Jose's case (supra). The said legal position declared by the Division Bench of this Court will apply to all pending matters and is not confined to its applicability merely on a prospective basis. The doctrine of prospective overruling is a rule which can be invoked only by the Supreme Court in our constitutional scheme of affairs as held in a catena of rulings. Where the High Courts declare the law, then it is not permissible for the High Court even though it is a constitutional court, to invoke the doctrine of prospective overruling and the legal position so settled by the High Court would apply not only for cause of action which arises on or after the date of the said judgment, but would also apply to all causes, pending on that day, etc. Therefore, the contention of the petitioner that he could competently maintain the appeal before the Sessions Court, notwithstanding the legal position settled by the Division Bench of this Court in Omana Jose's case (supra) is untenable and it is only to be overruled and it is accordingly so ordered. Therefore, it is only to be Crl.R.P.Nos.685 & 686/17 ::4::
held that the impugned orders passed by the Sessions Court returning the Criminal Appeals as not maintainable are perfectly in order and there is no question of considering the revision petitions which are directly against the correctness and legality of the said orders passed by the Sessions Court. However, it is made clear that the petitioner will be at liberty to work out his remedies strictly in accordance with law and in the light of the legal position settled by the Division Bench of this Court in Omana Jose's case (supra).
5. Faced with the situation, Sri.M.Premchand, learned counsel appearing for the revision petitioner/complainant, would submit that this Court may direct the Registry to return back the certified copies of the judgments/orders impugned in these cases and further that it may be clarified that the period spent by the petitioner for prosecution of the Criminal Appeals before the Sessions Court as well as these Crl. Revision Petitions before this Court may be excluded for the purpose of computation of limitation as envisaged in Section 470 of the Cr.P.C. and Section 14 of the Limitation Act. If the petitioner has a case that he has been bonafide prosecuting these matters before the wrong forum, it is for him to raise such a plea for exclusion of time in terms of Section 470 of the Cr.P.C. and Section 14 of the Limitation Act as and when he Crl.R.P.Nos.685 & 686/17 ::5::
invokes his remedy before the competent forum.
6. However, it is ordered in the interest of justice that the Registry will return back the certified copies of the judgment and order produced in these cases to the petitioner's counsel if a request in that regard so made by him. But the Registry will ensure that the photocopies of the said judgments are retained in the case file.
Accordingly, the Criminal Revision Petitions will stand dismissed with the abovesaid liberty.
ALEXANDER THOMAS JUDGE csl