THE COMMISSIONER OF INCOME TAX, vs. M/S.P.H.MOHAMMED KUNJU AND BROTHERS,

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. 371 OF 2024 AGAINST THE ORDER DATED 05.04.2024 IN CC NO.1178 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/RESPONDENTS & 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 ADV.JOSE JOSEPH, SC ADV.ASHI M C, PP THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP(CRL.) 371/2024 2 BECHU KURIAN THOMAS, J ......…............................................. O.P.(Crl) No.371 of 2024 …................................................ Dated this the 5th day of June, 2024 JUDGMENT Petitioner is the accused in C.C.No.1178/2017 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.1641/2024, 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.) 371/2024 3 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.) 371/2024 4 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.) 371/2024 5 APPENDIX OF OP(CRL.) 371/2024 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER DATED 30.03.2016 PASSED BY THE 2ND RESPONDENT FOR THE A.Y 2013-14 EXHIBIT P2 TRUE COPY OF THE COMMON ORDER DATED 28.10.2022 PASSED BY THE ITAT EXHIBIT P3 TRUE COPY OF THE COMPLAINT IN CC.NO.1178 / 2017 FOR THE OFFENCE UNDER SEC 276 CC FOR THE ASSESSMENT ORDER 2013-14 (WITHOUT ANNEXURES) EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 21.12.2023 PASSED BY THE HIGH COURT OF KERALA IN WP(C) 12654 / 2023 EXHIBIT P5 TRUE COPY OF THE PENALTY ORDER DATED 02.11.2023 FOR THE ASSESSMENT YEAR 2013-14 EXHIBIT P6 TRUE COPY OF THE APPLICATION FILED UNDER SEC 311 IN CMP 1641 OF 2024 IN CC.NO.1178 / 2017 DATED 21.03.2024 EXHIBIT P7 TRUE COPY OF THE ORDER DATED 05.04.2024 IN CMP 1641 / 2024 IN CC NO. 1178 / 2017 EXHIBIT P8 TRUE COPY OF PRINT OUT FROM THE E-COURT PORTAL SHOWING THE HEARING STATUS OF CC.NO.1178 / 2018 AS ON 22.04.2024 EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DATED 16.04.2024 IN OP (CRL) 334/2024 TRUE COPY