Kerala High Court
A.Silvester vs State Of Kerala Represented By Public on 12 November, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
CRL.A.No. 1509 of 2009 (C)
--------------------------
[AGAINST THE JUDGMENT DTD.4.4.2009 IN CC.93/2004 of J.M.F.C.-II,
MANANTHAVADY]
APPELLANT(S)/COMPLAINANT::
-------------------------
A.SILVESTER, S/O.AMBROS, AGED 50 YEARS,
JMJ HOUSE, NEAR L.F. U.P.SCHOOL, MANANTHAVADY.
BY ADVS.SRI.R.DIVAKARAN
SRI.VINUCHAND
RESPONDENTS(S)/ACCUSED::
-----------------------
1. STATE OF KERALA REPRESENTED BY PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THANKAMMA YESUDAS, PANCHAYATH PRESIDENT
THAVINJAL DESOM.
3. E.J.BABU, VICE PRESIDENT,
MANANTHAVADY GRAMA PANCHAYATH, MANANTHAVADY.
4. E.M.ABDUL RAHMAN, THALAPUZHA,
WAYANADU DISTRICT.
5. ASHISH, S/O.JAMES, KALLAKKUNNEL HOUSE,
THALAPUZHA, MANANTHAVADY.
6. ANIL, S/O.JAMES, KALLAKKUNNEL VEEDU,
THALAPUZHA, MANANTHAVADY.
7. K.S.SUNNY, BHAVANA HOME APPLIANCES,
OPP.L.F.U.P.SCHOOL, MANANTHAVADY.
8. V.R.GOPI, JANATHA AUTO CONSULTANT,
THALASSERY ROAD, MANANTHAVADY.
9. JOSE MATHEW, CONGRESS WORKER,
VIMALA NAGAR P.O., THAVINJAL, MANANTHAVADY.
10. RAJU, S/O.CHACKO, KALLAKKUNNEL HOUSE,
THALAPUZHA, MANANTHAVADY.
R2 TO 10 BY ADV. SRI.RAM MOHAN.G.
R2 TO 10 BY ADV. SRI.G.P.SHINOD
R1 BY PUBLIC PROSECUTOR SMT.T.Y.LALIZA.
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-11-
2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
----------------------------------------
Crl.A.No. 1509 of 2009
----------------------------------------
Dated this the 12th day of November, 2012
J U D G M E N T
The complainant in a prosecution for the offence under Section 500 of I.P.C. is the appellant herein since he is aggrieved by the judgment dated 4.4.2009 in C.C.No.93 of 2004 of the court of the Judicial First Class Magistrate-II, Mananthavady by which the learned Magistrate acquitted the accused nine in numbers under Section 255(1) of the Cr.P.C.
2. The learned counsel for the appellant strenuously submitted that the appellant could not adduce evidence because of the dispute between himself and the counsel, who appeared for him in the trial court and against whom proceedings were pending in the Bar Council of Kerala and therefore, the counsel submitted that an opportunity may be given to the complainant to prosecute the matter on merit.
3. I have carefully considered the arguments advanced by Crl.A.No.1509 of 2009 :-2-:
counsel for the appellant and I have gone through the impugned judgment.
4. It appears that the case of the appellant/complainant is that the accused with their common object to defame the complainant caused damages to his house and exhibited poster to defame him and thereby, the accused have committed the offence punishable under Section 500 of I.P.C. The accused appeared before the trial court in pursuance of the summons issued and their pleas were recorded.
5. The learned Magistrate has specifically found that C.C.No.93 of 2004 is one of the old cases included in the target for disposal. According to the learned Magistrate, whenever the case is taken, the complainant had got adjourned the case and the same was continued on several occasions and the reason for such adjournment, according to the complainant, is that the case was entrusted with one Adv.Sri.P.K.Narayanan, who withdrew himself from conducting the case but the case records were not returned to the complainant.
6. The learned Magistrate has specifically found that on Crl.A.No.1509 of 2009 :-3-:
21.3.2009, the complainant informed the court that his counsel had relinquished the vakalath and prayed time for appointing a new counsel. The learned Magistrate, without any hesitation, in spite of several adjournments taken previously, granted time till 30.3.2009 to appoint a new counsel. But no counsel was appointed as on 30.3.2009 and instead, the complainant has filed CMP No.1092 of 2009 to adjourn the case. As the complainant was not ready to give evidence, the learned Magistrate ordered the complainant to deposit witness batta to Cws.1 to 8 within five days so as to record the evidence of those witnesses. But, the complainant has also not complied with that direction and no witness batta was deposited. The learned Magistrate has specifically recorded that the complainant has submitted that he was not ready to examine the witness or give evidence on his side.
Thus, the learned Magistrate concluded that the complainant does not want to have a trial in this case, but wants to adjourn the case so as to cause inconvenience for the accused. It is in the above backdrop of the case, the learned Magistrate observed that the complainant is not Crl.A.No.1509 of 2009 :-4-:
willing to give evidence under Section 251(1) of the Cr.P.C. and he has not deposited the batta as ordered by the court below. Thus, the learned Magistrate has found that as no evidence is adduced from the side of the complainant, the accused are not guilty for the offence under Section 500 of I.P.C., consequently, they are acquitted under Section 255(1) of the Cr.P.C.
7. From the above discussion and the facts stated, it can be seen that though the case pertains to the year 2004 and though sufficient opportunities were given to the complainant to prosecute the case by adducing evidence, those opportunities were not availed of. Since the case is an old one, and towards the progress of the trial of the case, though the learned Magistrate directed the complainant to deposit the witness batta so as to summon those witnesses and to examine them, that was also not complied with. According to me, under the above factual background and lapse on the part of the complainant, the court below has no other option, but to close the evidence of the complainant. Thus, it can be seen that though the Crl.A.No.1509 of 2009 :-5-:
cognizance was taken during the year 2004, the impugned judgment was passed after five years i.e., 4.4.2009 and the appellant has miserably failed to explain the lapse on his part in not adducing evidence and prosecuting the matter effectively and promptly. So, I am not inclined to interfere with the order of acquittal recorded by the trial court at this belated stage after three years from the date of judgment. In fact, after taking cognizance upon the complaint preferred by the appellant, eight years are over. Hence, the appellant has miserably failed to make out any ground to interfere with the order of acquittal recorded by the trial court.
In the result, there is no merit in this appeal and accordingly, the same is dismissed.
V.K.MOHANAN, Judge MBS/ Crl.A.No.1509 of 2009 :-6-:
V.K.MOHANAN, J.
CRL.A.No. 434 OF 2003 Crl.A.No.1509 of 2009 :-7-:
JUDGMENT Dated:11.11.2011