Rejeena Joy vs M/S.Moozhikkulam Chit Funds
2023 Latest Caselaw 8411 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

       MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945

                       OP(CRL.) NO. 497 OF 2023

 CC NO. 634/2019 OF JUDICIAL FIRST CLASS MAGISTRATE. COURT, ANGAMALY

PETITIONER/ACCUSED:

           REJEENA JOY
           AGED 63 YEARS
           W/O JOY, KUNNUMPURATH HOUSE, KEERICODE, THODUPUZHA (E)
           P.O, PIN - 685 584.
           BY ADVS.
           DENIZEN KOMATH
           ANANTHU ARAVIND
           MARIYA ANTONY


RESPONDENT/COMPLAINANT:

           M/S.MOOZHIKKULAM CHIT FUNDS
           MOOZHIKKULAM, REPRESENTED BY ITS MANAGING PARTNER, JOSE
           MATHEW, AGED 58 YEARS, S/O. MATHEW, KOLUVAN HOUSE,
           MOOZHIKKULAM, PIN - 683 579.
           BY ADV. JOE PAUL P. J.



THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07.08.2023, THE COURT

ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No. 497/2023            :2:




                           A. BADHARUDEEN, J.
           ---------------------------------------------------------
                      O.P.(Crl.) No. 497 of 2023
           ---------------------------------------------------------
                  Dated this the 7th day of August, 2023.

                              JUDGMENT

This Original Petition (Criminal) has been filed under Article

227 of the Constitution of India. The petitioner is the accused in

C.C. No. 634 of 2019 on the file of Judicial First Class Magistrate

Court, Angamaly. The prayers sought for in this Original Petition

are as follows:

1. Call for the entire records pertaining to the facts pleaded in the Original Petition (Criminal).

2. Issue any appropriate order or direction directing the Judicial First Class Magistrate Court, Angamaly to recall the non- bailable warrant issued by the court below by cancelling the bail bond in C.C. No. 634 of 2019, including service of notice to the sureties, and allow the petitioner to continue with the proceedings and existing bail.

2. Heard both sides.

3. It is submitted by the learned counsel for the petitioner

that the petitioner is undergoing treatment for tumor and therefore,

she could not appear before the court for the cross examination of

the witness. Thereafter, the learned Judicial First Class Magistrate,

Angamaly ordered non bailable warrant against her and the same is

pending. It is further submitted that the petitioner is ready to

surrender before the jurisdictional Magistrate and to co-operate

with the trial.

4. Whereas, it is pointed out by the learned counsel for the

respondent that the petitioner has been playing dilatory tactics and

he has read out the substance of Exhibit P3 which is the e-court

proceedings of the court below in C.C. No. 634 of 2019. The case

history, as in Exhibit P3, is reproduced hereunder:

Case History

Registration Judge Business on Hearing Date Purpose of Number date Hearing 100634/2019 Judicial First Class 22.04.2020 Adjourned Magistrate 100634/2019 Judicial First Class 26.11.2020 No sitting notified Magistrate 100634/2019 Judicial First Class 26.02.2021 For evidence Magistrate 100634/2019 Judicial First Class 17.09.2021 Adjourned Magistrate 100634/2019 Judicial First Class 22.02.2022 Adjourned Magistrate 100634/2019 Judicial First Class 07.07.2022 No sitting notified Magistrate 100634/2019 05.08.2022 For Evidence 100634/2019 Judicial First Class 06.09.2022 For evidence Magistrate

100634/2019 Judicial First Class 22.10.2022 For evidence Magistrate 100634/2019 Judicial First Class 25.11.2022 No sitting notified Magistrate 100634/2019 Judicial First Class 20.12.2022 Bound over Magistrate 100634/2019 Judicial First Class 26.12.2022 Examination of Magistrate the accused u/s 313 Cr.P.C 100634/2019 Judicial First Class 16.01.2023 Call with MP Magistrate 100634/2019 Judicial First Class 02.02.2023 Call with MP Magistrate 100634/2019 Judicial First Class 07.02.2023 For hearing Magistrate 100634/2019 Judicial First Class 23.02.2023 Call with MP Magistrate 100634/2019 Judicial First Class 30.03.2023 For Cross Magistrate Examination 100634/2019 Judicial First Class 21.06.2023 No sitting notified Magistrate 100634/2019 Judicial First Class 21.6.2023 21.06.2023 For Cross Magistrate examination 100634/2019 21.06.2023 Restored 100634/2019 Judicial First Class 23.06.2023 NBW and notice Magistrate to Sureties 100634/2019 Judicial First Class Disposed Magistrate 100634/2019 Judicial First Class 08.08.2023 NBW and notice Magistrate to Sureties

5. On a perusal of the above, it appears that when the case

was posted for the examination of the accused under Section 313

Cr.P.C., after completing evidence, the petitioner filed a petition to

re-open the evidence and the same was allowed and the case was

posted repeatedly for cross examination. The petitioner failed to

cross examine the witnesses and it appears prima facie that the

petitioner is playing dilatory tactics to avoid the disposal of the case

which has been pending from 2019 onwards. Therefore, while

addressing the grievance of the petitioner, though on merits, such a

relief cannot be granted, I am inclined to direct the petitioner to

surrender before the Judicial First Class Magistrate, Angamaly,

specifically on 17.08.2023 at 11 a.m with a counsel of her choice to

cross examine the witness, if interested to do so and move fresh

bail in that matter. The trial court shall allow the petitioner to cross

examine the witness on that day itself, for which the complainant

also is directed to appear on the same day.

6. The learned Magistrate is directed to grant bail to the

petitioner and it is specifically made clear that in view of the

forfeiture of the bond, proceedings under 446 Cr.P.C to realize the

penalty in view of forfeiture, shall be resorted to in accordance with

law, against the accused and the sureties.

7. It is specifically ordered further that the petitioner shall co-

operate with the trial and she shall appear before the court as and

when directed, facilitating disposal of the case by the Magistrate

Court, positively on or before 16.10.2023 and the learned

Magistrate is directed to dispose of the case within the said period,

without fail and report compliance.

This Original Petition (Criminal) is disposed of as above.

Registry is directed to forward a copy of this order to the court

below for information and compliance.

sd/-

A. BADHARUDEEN, JUDGE

Rv

APPENDIX OF OP(CRL.) 497/2023

PETITIONER'S EXHIBITS:

Exhibit-P1 TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE RESPONDENT AND PENDING AS CC NO. 634/19 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY.

Exhibit-P2 TRUE PHOTOCOPY OF THE REPORT RELATING TO PETITIONER AILMENTS AND TREATMENT ISSUED BY THE DEPARTMENT OF NUCLEAR MEDICINE PET-CT IMAGING AND THERAPYCENTRE, KOTTAYAM.

Exhibit P-3 TRUE PHOTOCOPY OF THE E-COURT PROCEEDINGS OF THE COURT BELOW IN C.C NO. 634/2019 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY.

RESPONDENTS' EXHIBITS: NIL

True Copy

PS To Judge.

rv