Title: Raju J Vylattu v. P.V. Alexander & Anr. And connected matter.
Decided on October 9, 2023.
Case No: CRL.REV.PET No. 3007 of 2011 and CRL.REV.PET No. 3008 of 2011.
CORUM: THE MR. JUSTICE C.S. DIAS.
Introduction
The Hon’ble High Court of Kerala observed that on failure of giving the opportunity to the accused to present his defence in the related case in which he is accused and not questioning of the allegation in which he is accused in the case under the provision of Section 313 of Cr. P. C. 1973, is against the natural justice and is against the provision of law also. The maxim “AUDI ALTERAM PARTEM” is everyone has the right be heard is must be followed to reach the end of justices.
Facts of the case
The accused had borrowed the loan amount of Rs.10 lakh from the respondent and discharge of the liability had issued exts.P2 AND P6 cheque and got dishonored by P3 and P7 memorandum due to insufficient fund in the accused bank account. The complainant had issued Exts. P5 and P9 statutory lawyer notices although accused had failed to repay the debt. The complainant filed a common case alleging the accused to have committed the offence under Section 138 of Negotiable Instrument Act.
Court’s analysis
In the trial of the case the power of attorney holder of the complaint was examined as PW1 and Ext. p1 and P9 were marked as evidence. Although the accused pleaded not guilty the learned Magistrate without questioning the accused U/S 313(1)(b) of the Cr. P. C. processed the further proceedings. The accused did not let any defence evidence. The trail court convicted and sentenced the accused for the above offence. Aggrieved by the judgement the accused preferred the appeal before the Appellate court. The Appellate court approve the judgement given by the trial court and confirm the conviction but modified the sentence imposed by the learned Magistrate. The revision petition filed by the accused to questioning the legality, propriety and correctness of the above common judgement. The argument given by the counsel of the petitioner is that the right given under the Section 313 of Cr. P. C. is indefeasible right which has not been complied in this case. It was submitted that entire proceeding is vitiated and the acuused petitioner should be acquitted. The Hon’ble High Court has observed and relied upon the judgements given by the Hon’ble Apex Court of India such as Shobhit Chamar & Anr. V. State of Bihar. (1989), Alister Anthony Pareira v. State of Maharashtra. (2012), Nar Singh v. State of Haryana. (2015). The Hon’ble High Court observed that failure of the learned Magistrate in giving the fare opportunity to the accused under the provision of Section 313 of Cr. P. C. is the miscarriage of justice and it’s against the natural justice. The Hon’ble Court set aside the impugned judgement and remitted the case to the trial court for a fresh hearing and ordered that the accused should be asked the question under the provision 313 of Cr. P. C. and also directed not to be prejudice to the revision petitioner.
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Written by: Aamir Hussain.
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