Kerala High Court
Garts Ind Tex. (P) Ltd vs Mr. Varghese Mundackal on 29 September, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
O.P.(Crl.).No.225 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 29TH DAY OF SEPTEMBER 2025 / 7TH ASWINA, 1947
OP(CRL.) NO. 225 OF 2025
AGAINST THE ORDER/JUDGMENT DATED 31.01.2025 IN CMP NO.
619/2025 IN CC NO.323 OF 2018 OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, ERNAKULAM
PETITIONER(S)/COMPLAINANT:
GARTS IND TEX. (P) LTD.
2ND FLOOR, ABHILASH BUILDING, 43/1340 D, ST.
BENEDICT ROAD, COCHIN - 18, PIN - 682018.
REPRESENTED BY ITS DIRECTOR, MR. M.C SAJUMON
BY ADVS.
SRI.SHAIJAN C.GEORGE
SHRI.VINAI JOHN
SHRI.AJAY RAMESH
RESPONDENT(S)/ACCUSED:
MR. VARGHESE MUNDACKAL
MUNDACKAL HOUSE, KARINGAZHA, CHELAD P.O.,
KOTHAMANGALAM., PIN - 686681
BY ADVS.
SRI.SHAIJAN JOSEPH
SHRI.SANIL KUMAR
SMT.SURUMI SHAKEEL
SMT.SINDHU A.G.
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
29.09.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(Crl.).No.225 of 2025
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P.V.KUNHIKRISHNAN, J
--------------------------------
O.P.(Crl.) No.225 of 2025
-------------------------------
Dated this the 29th day of September, 2025
JUDGMENT
The above Original Petition (Crl.) is filed seeking the
following reliefs:
"i) Set aside the order dated 31.01.2025 passed by
the Learned Additional Chief Judicial Magistrate, Special
Court for MPs and MLAs, in CMP No. 9268/2024 in C.C No.
323/2018;
ii) Set aside the order dated 31.01.2025 passed by
the Learned Additional Chief Judicial Magistrate, Special
Court for MPs and MLAs, in CMP No. 9269/2024 in C.C No.
323/2018;
iii) Set aside the order dated 25.02.2025 passed
by the Learned Additional Chief Judicial Magistrate, Special
Court for MPs and MLAs, in CMP No. 619/2025 in C.C No.
323/2018;
iv) Direct the trial court to reopen the prosecution
evidence and to recall PW1 and allow to adduce evidence ;
v) summon the additional witnesses mentioned in
the Exhibit P7, List of Prosecution Witness dated 13.11.2024
filed by the petitioner; and
vi) To grant such other reliefs that may deem fit
and proper to the circumstance of the case."[SIC]
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2. Petitioner is the complainant in C.C.
No.323/2018 on the file of the Additional Chief Judicial
Magistrate, Ernakulam. The petitioner filed a petition for
examination of the witnesses. The same was dismissed as per
Ext.P15 order. Aggrieved by the same, this Original Petition
(Crl.) is filed.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. This Court perused Ext.P15 order. It will be
better to extract paragraph No.9 of the above order:
"9. In the present case, the offence alleged against
the accused is punishable u/s.138 of the Negotiable
Instruments Act, 1881. The short question under
consideration is whether the accused has executed and
issued Ext.P1 cheque in favour of the complainant to
discharge a legally enforceable debt. However, the
petitioner has not specifically stated the point to be proved
through the witness or the role played by them in the
alleged transaction. The petitioner has no case that the
above witnesses have witnessed either the alleged
transaction or the execution of the Ext.P1 cheque.
Therefore, examination of the above witnesses and marking
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of the documents shown in the list are not required for the
just decision of the case. "
5. The learned Magistrate dismissed the petition
mainly for the reason that the petitioner has not specifically
stated the point to be proved through the witnesses or the role
played by them in the alleged transaction. I am of the
considered opinion that the petitioner can be given one more
opportunity to file a fresh application for examination of the
additional witnesses and to recall PW1. If such an application is
filed, there can be a direction to the learned Magistrate to
consider the same untrammeled by any observation in Ext.P15
order.
Therefore, this Original Petition (Crl.) is disposed of in
the following manner:
1. The petitioner is free to file a fresh application before
the jurisdictional court for examination of the additional
witnesses showing the purpose for examination of the
witnesses and the role played by them in the alleged
transaction, within a period of three weeks from the
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date of receipt of a certified copy of this judgment. The
petitioner is also free to file an appropriate application
to recall PW1.
2. If such an application is filed, the jurisdictional court will
consider the same untrammeled by any observation in
Ext.P15 order, as expeditiously as possible, before
proceeding with the case.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
DM
Judgment reserved NA
Date of Judgment 29.09.2025
Judgment dictated 29.09.2025
Judgment uploaded 29.09.2025
2025:KER:72658
APPENDIX OF OP(CRL.) 225/2025
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE LETTER DATED 10.12.1998
WHICH ACCOMPANIED THE CHEQUE BEARING NO.
072205
EXHIBIT P2 A TRUE COPY OF THE COMPLAINT IN C.C NO.
547/1999 DATED 04.02.1999 FILED BY THE
PETITIONER
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN CRL. M.C. NO.
732/2005 DATED 21.03.2006
EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT DATED
31.10.2002 IN C.C NO. 2187/2002
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 30.07.2002
EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN O.P (CRL.) NO. 626/2024 DATED
12.09.2024
EXHIBIT P7 TRUE COPY OF THE LIST OF WITNESSES
EXHIBIT P8 TRUE COPY OF THE LIST OF DOCUMENTS
EXHIBIT P9 TRUE COPY OF THE PETITION WHICH IS NUMBERED
AS C.M.P. NO. 9268/2024 IN C.C. NO. 323/2018
EXHIBIT P10 TRUE COPY OF THE PETITION IN C.M.P. NO.
EXHIBIT P11 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT IN C.M.P. NO. 9268/2024
EXHIBIT P12 TRUE COPY OF THE ORDER PASSED BY THE LEARNED
SPECIAL ADDITIONAL CHIEF JUDICIAL MAGISTRATE
IN C.M.P. NO. 9268/2024 DATED 31.01.2025
EXHIBIT P13 TRUE COPY OF THE ORDER IN C.M.P.NO.
9269/2024 DATED 31.01.2025
EXHIBIT P14 TRUE COPY OF THE LIST OF ADDITIONAL
DOCUMENTS DATED 19.11.2024
EXHIBIT P15 THE TRUE COPY OF THE IMPUGNED ORDER DATED
25.02.2025 IN C.M.P NO. 619/2025 IN C.C
RESPONDENT EXHIBITS
EXHIBIT R1 TRUE COPY OF REPLY NOTICE DATED 5.1.1999
