IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 22^ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946 OP(CRL.) NO. 334 OF 2024 IN CC NO.450 OF 2018 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E& O),ERNAKULAM PETITIONER/ACCUSED:

P.S. NATARAJ AGED 57 YEARS S/O MR. P.V. SADASIVAN, RESIDING AT NATARAJ BHAVAN, TANUR P.O., MALAPPURAM, MALAPPURAM DISTRICT, PIN – 676302 BY ADVS.

M.P.SHAMEEM AHAMED K.SANEESH KUMAR AKHIL PHILIP MANITHOTTIYIL DANIYA RASHEED PALLIYALIL RESPONDENTS/RESPONDENT AND COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031

2 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, THRISSUR OFFICE OF THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AAYAKAR BHAVAN, S.T.NAGAR, THRISSUR, THRISSUR DISTRICT, PIN – 680001 BY ADVS.

NAVANEETH.N.NATH JOSE JOSEPH(K/450/1981)

SUSIE B VARGHESE(K/1300/2019)

OTHER PRESENT:

SRI. RENJITH T.R. PUBLIC PROSECUTOR THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON

22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

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O.P.(Crl.).No.334 of 2024 ---------------------------------------

Dated this the 22nd day of May, 2024

JUDGMENT

Petitioner is the accused in C.C.No.450/2018 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 10.02.2023, the counsel appearing for the accused did not cross-examine the witness. Subsequently, when PW2 was examined on 09.02.2024, again, the witness was not cross-examined by the defence. The learned Chief Judicial Magistrate thereafter, proceeded with the trial, and questioned the accused under Section 313 Cr.P.C. Subsequently, the defence evidence was also not adduced. Later, an application was filed 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.1453/2024, has been dismissed by the impugned order dated

30.03.2024.

2. I have heard Sri. M.P.Shameem Ahamed, the learned counsel for the petitioner as well as Sri. Navaneeth.N.Nath, the learned Standing Counsel for the Income Tax Department.

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 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