Kerala High Court
P.M. Abdul Nazeer vs State Of Kerala on 5 June, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA,
1946
OP(CRL.) NO. 370 OF 2024
AGAINST THE ORDER DATED 05.04.2024 IN CC NO.1124 OF
2017 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
(E&O),ERNAKULAM
PETITIONER/ACCUSED:
P.M. ABDUL NAZEER, AGED 62 YEARS
S/O LATE KUNHABDULLA, FIELD HOUSE, KUTTIADI,
VADAKARA, KOZHIKODE, PIN - 673 508
BY ADVS.
M.P.SHAMEEM AHAMED
K.SANEESH KUMAR
AKHIL PHILIP MANITHOTTIYIL
DANIYA RASHEED PALLIYALIL
ANJU CHANDRAN
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE ASSISTANT COMMISSIONER OF INCOME TAX,
CENTRAL CIRCLE-1, KOZHIKODE
OFFICE OF THE ASSISTANT COMMISSIONER OF
INCOME TAX,
CENTRAL CIRCLE-1, AAYAKAR BHAVAN,
NORTH BLOCK, NEW ANNEXE BUILDING,
MANANCHIRA, KOZHIKODE, PIN - 673 001
SREEJA V.(PP)
JOSE JOSEPH, SC
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(CRL.) 370/2024
2
BECHU KURIAN THOMAS, J
......................................................
O.P.(Crl) No.370 of 2024
...................................................
Dated this the 5th day of June, 2024
JUDGMENT
Petitioner is the accused in C.C.No.1124/2017 on the files of the
Additional Chief Judicial Magistrate Court (Economic Offences)
Ernakulam. He is being prosecuted for the offences under Section 276C
and 276 CC of the Income Tax Act, 1961. After the trial commenced,
when PW1 was examined on 10.01.2024, the counsel appearing for the
accused did not cross-examine the witness. Subsequently, when PW2 was
examined on 01.02.2024, again, the witness was not cross-examined by
the defence. The learned Chief Judicial Magistrate thereafter, proceeded
with the trial. Later an application under Section 311 Cr.P.C, seeking to
reopen the evidence to enable the petitioner to cross-examine PW1 and
PW2. The said application, filed as C.M.P.No.1637/2024, has been
dismissed by the impugned order dated 05.04.2024
2. I have heard Sri. M.P.Shameem Ahamed, the learned counsel for the
petitioner as well as Sri. Jose Joseph, the learned Standing Counsel for
the Income Tax Department.
OP(CRL.) 370/2024
3. The learned Chief Judicial Magistrate has, by an elaborate order,
dismissed the application under Section 311 Cr.P.C, after observing that
the application is vague and incomplete and also that it is an attempt to
delay the proceedings. The learned Chief Judicial Magistrate also held
that the relevancy of the evidence sought to be adduced is not at all
ascertainable, nor is it specifically stated in the application.
4. Though this Court cannot find any infirmity in the reasons stated in the
impugned order, considering the totality of the circumstances, it is
essential that an opportunity be granted to the petitioner to cross-
examine the witnesses and to adduce his evidence. During the trial, none
of the witnesses were cross-examined. Though the failure can be
attributed to the petitioner himself, the omission to cross-examine the
prosecution witnesses can lead to prejudice, which in turn may delay or
drag the proceedings in the ultimate analysis. Therefore, an opportunity
ought to be granted, as a last chance. To avoid a possible delay due to
a one sided prosecution, this Court is of the view that the application of
the petitioner to recall the witnesses for cross-examination and to adduce
defence evidence be allowed on terms.
5. Since the respondent had vehemently contended that the attempt of the
OP(CRL.) 370/2024
petitioner is only to delay the matter, it is appropriate to fix a specific
period within which the cross examination is completed. Having regard
to the circumstances, the prosecution witnesses PW1 and PW2 can be
made available for cross examination on a particular date and the cross
examination be completed by the petitioner without delay.
6. In view of the above, the impugned order dated 05.04.2024 is set aside,
and the application of the petitioner for cross examining the prosecution
witnesses PW1 and PW2 and also to adduce the defence evidence, if
any, is allowed on payment of a cost of Rs.2,500/- on or before
19.06.2024, to the Kerala Legal Services Authority and the receipt shall
be filed before the Trial Court. PW1 and PW2 shall be cross-examined
between 22.07.2024 and 29.07.2024. In case, petitioner fails to cross
examine the witnesses within the above stipulated period, the learned
Chief Judicial Magistrate will be free to proceed with the case. Needless
to mention that the cost for procuring the witnesses once again, shall
also be borne by the petitioner.
Original petition is disposed of as above.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/10/06/2024
OP(CRL.) 370/2024
APPENDIX OF OP(CRL.) 370/2024
PETITIONER EXHIBITS
EXHIBIT P1 A COPY OF THE ASSESSMENT ORDER DATED
30.03.2016 PASSED BY THE 2ND RESPONDENT FOR
THE A.Y 2010-11
EXHIBIT P2 A COPY OF THE COMMON ORDER DATED 28.10.2022
PASSED BY THE ITAT
EXHIBIT P3 A COPY OF THE COMPLAINT IN CC.NO.1124 / 2017
FOR THE OFFENCE UNDER SEC 276 CC FOR THE
ASSESSMENT ORDER 2010-11 (WITHOUT ANNEXURES)
EXHIBIT P4 A COPY OF THE JUDGMENT DATED 21.12.2023
PASSED BY THE HIGH COURT OF KERALA IN WP(C)
EXHIBIT P5 A COPY OF THE PENALTY ORDER DATED 02.11.2023
FOR THE ASSESSMENT YEAR 2010-11
EXHIBIT P6 A COPY OF THE APPLICATION FILED UNDER SEC 311
EXHIBIT P7 A COPY OF THE ORDER DATED 05.04.2024 IN CMP
EXHIBIT P8 PRINT OUT FROM THE E-COURT PORTAL SHOWING THE
HEARING STATUS OF CC.NO.1124 / 2017 AS ON
22.04.2024
EXHIBIT P9 A COPY OF THE INTERIM ORDER DATED 16.04.2024
IN OP (CRL) 334/2024
TRUE COPY
