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2017 DIGILAW 1317 (KER)

Robin v. State of Kerala

2017-10-19

ALEXANDER THOMAS

body2017
ORDER : Alexander Thomas, J. 1. The prayer in Criminal Miscellaneous Application No.373 of 2017 in Criminal Revision Petition No. 1336 of 2002 is for orders from this Court by virtue of the enabling powers conferred under Section 482 of the Code of Criminal Procedure to recall Annexure-I order dated 5.12.2012 rendered by this Court in Criminal Revision Petition No. 1336 of 2002 and to hear the matter in the said Criminal Revision Petition afresh, as a reasonable opportunity of being heard was not granted to the petitioner in the said revisional proceedings. The subsidiary prayer raised in Criminal Miscellaneous Application No.3335 of 2016 is for directions from this Court to permit the applicant to deposit the sum of Rs.2,70,000/- which was directed to be paid by this Court as compensation vide order dated 5.12.2012 in the abovesaid Criminal Revision Petition and to suspend the warrant pending against the petitioner in the interest of justice. 2. The applicant herein is respondent No.2/accused in the aforestated Criminal Revision Petition No. 1336 of 2002. The applicant was indicted for the offence punishable under Section 138 of the Negotiable Instruments Act in S.T.No.1485 of 1995 on the file of the Judicial First Class Magistrate Court, Pattambi, instituted on the basis of a complaint filed by the second respondent herein. 3. Exhibit P1 dishonoured cheque dated 20.2.1995 is for Rs.2,70,000/-. The trial court as per the impugned judgment rendered on 31.8.1998 had convicted the petitioner for the above said offence and had sentenced him to undergo simple imprisonment for three months and to pay fine of Rs.2,70,000/- to the complainant and in default thereof, to undergo simple imprisonment for a period of three months. Aggrieved thereby the petitioner had preferred Criminal Appeal No. 121 of 1998 before the Appellate Sessions Court concerned (Court of the Additional Sessions Judge, Fast Track Court-I, Palakkad). The appellate Sessions Court as per the judgment rendered on 30.7.2002 had set aside the impugned conviction and sentence imposed on the petitioner and had remanded the matter to the trial court for consideration of the matter afresh. The appellate court in the judgment dated 30.7.2002 took the view that the cheque did not contain the account number of the drawer and further the Judicial First Class Magistrate Court at the relevant time could not have imposed a fine exceeding Rs.5,000/-. The appellate court in the judgment dated 30.7.2002 took the view that the cheque did not contain the account number of the drawer and further the Judicial First Class Magistrate Court at the relevant time could not have imposed a fine exceeding Rs.5,000/-. Aggrieved by the said verdict of the appellate court, the complainant had preferred the instant Criminal Revision Petition No. 1336 of 2002 before this Court in which the accused is arrayed as respondent No.2. Notice was duly served on R2/accused and a counsel (viz., Sri.V.G.Sankaran) had entered appearance on behalf of the accused. The Criminal Revision Petition was taken up for final hearing on 5.12.2012, on which day, the learned counsel appearing for the accused had not appeared before this Court. Therefore, this Court proceeded to consider the merits of the matter after hearing the learned counsel appearing for the revision petitioner/complainant and the first respondent/State. 4. This Court as per the impugned revisional order dated 5.12.2012 found that the abovesaid finding made by the appellate court that the cheque did not contain any account number and that the complainant had not proved that the cheque was drawn from an account maintained by the accused etc. are factually wrong and that the complainant had taken the trouble of summoning the Bank Manager for proving the signature of the accused in the cheque in comparison of his specimen signature maintained by the Bank to the account of the accused and that the accused did not ask any question to his own Banker regarding the absence of the account number in the cheque, etc. Further it was also found that the cheque thus contained the account number though it is not located in the place where it is usually printed. Accordingly, this Court as per the said impugned order dated 5.12.2012 had set aside the impugned appellate judgment and had also held that the impugned direction of the Magistrate was to sentence the accused to three months' simple imprisonment and to direct the accused to pay compensation of Rs.2,70,000/- to the complainant. Accordingly, this Court restored the impugned judgment of the trial court with the modification that the direction to pay fine should be substituted by the direction to pay compensation of Rs.2,70,000/-. Accordingly, this Court restored the impugned judgment of the trial court with the modification that the direction to pay fine should be substituted by the direction to pay compensation of Rs.2,70,000/-. The impugned substantive sentence of three months' simple imprisonment imposed by the trial court has thus been restored by this Court in the abovesaid impugned revisional order. 5. Heard Sri.P.Martin Jose, learned counsel appearing for the applicant/accused, Sri.Bechu Kurian Thomas, learned Senior Counsel, instructed by Sri.S.Sreedev, learned counsel appearing for the second respondent/complainant and Sri.Saigi Jacob Palatty, learned prosecutor appearing for R1/State. 6. It is not necessary for this Court to enter into the merits of the findings regarding the conviction and sentence imposed on the applicant/accused. The main ground put forward in this application is to the effect that the applicant has not been granted a reasonable opportunity of being heard before this Court had passed the impugned revisional order reversing the appellate judgment which was in his favour. It is averred in the affidavit filed in support of this application that the applicant was born and brought up in Mumbai and has been residing in that city and that on receipt of notice of the abovesaid Criminal Revision Petition, he had approached an Advocate known to him, who is practicing in the District and Sessions Court, Thrissur, in order to appear on his behalf before this Court and then the said counsel had expressed the inconvenience and had introduced one Sri.V.G.Sankaran, Advocate, who was practicing before this Court. Thereupon the applicant had gone to the residence and office of Sri.V.G.Sankaran, Advocate at Palarivattom, Ernakulam, and had given necessary instruction and signed the vakalath. Since the applicant was settled in Mumbai he used to contact Sri.V.G.Sankaran, Advocate, through phone to enquire about the progress of the case and when he had contacted his counsel in the year 2005, he was informed that normally it may take 7 to 8 years for taking up the revision for final hearing and that his counsel told him that necessary information would be conveyed as and when the case was taken up for hearing. The applicant was always under the bonafide belief that his Advocate will look after the matter and inform him as and when required. The applicant was always under the bonafide belief that his Advocate will look after the matter and inform him as and when required. Much later on 30.7.2015, when the petitioner was out of station, two police constables from Chunna batti Police Station, Mumbai had come to his flat at Mumbai and had informed his mother that a non bailable warrant issued by the Judicial First Class Magistrate Court, Pattambi, is pending against him and on coming to know of that, he had contacted an Advocate, one Sri.Muhammed Shafeeque, who was practicing in Pattambi. On such enquiry, it was understood that as per the impugned Annexure-AI revisional order dated 5.12.2012, this Court allowed the said revision filed by the complainant and had reversed the appellate judgment rendered in favour of the accused and that the trial court judgment has thus been restored. Immediately, the petitioner had attempted to contact Sri.V.G.Sankaran, Advocate, through phone, but the same was constantly switched off and he had contacted the aforementioned Advocate at Thrissur (one Sri.Narayanankutty), who had introduced the applicant to Sri.V.G.Sankaran, Advocate, and the said Advocate also could not provide any details. Thereupon the petitioner had come down to Kochi to enquire the matter directly with his counsel and had gone to his office and it was found that the office was blocked and on an enquiry, it was revealed that Sri.V.G.Sankaran had wound up his practice and had gone abroad and settled there. It is thus pointed out that the applicant's counsel had never informed the applicant that he had stopped his practice and that therefore, the applicant did not get any opportunity whatsoever to get the case file returned back from the previous counsel so as to engage a new counsel in the abovesaid revisional proceedings. The applicant had also made enquiries in the Bar Council of Kerala and came to know that Sri.V.G.Sankaran, Advocate, had submitted an application as early as on 15.7.2010 to suspend his enrollment temporarily. It is thus contended by the applicant that he had taken all reasonable steps possible under these circumstances to defend his case through a counsel and that the petitioner was totally unaware about the fact that his counsel had stopped practice and that his case had gone undefended and that it is in these circumstances that the impugned revisional order was passed, without hearing the applicant/ accused. On this basis, it is also contended that going by the legal principles well settled by the Apex Court and by this Court, the impugned revisional order which has been passed in violation of natural justice is liable to be recalled so that the matter is heard afresh and that powers in that regard are available with this Court by virtue of the enabling provisions conferred under Section 482 of the Code of Criminal Procedure. 7. This Court as per the order dated 9.1.2017, after hearing both sides, had found that prima facie the applicant has a strong arguable case in the light of the legal principles laid down by the Apex Court in Vishnu Agarwal v. State of Uttar Pradesh and another reported in (2011) 14 SCC 813 , State of Punjab v. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770 , Asit Kumar Kar v. State of West Bengal and others reported in (2009) 2 SCC 703 and the decision of this Court in Pushpangathan v. State of Kerala reported in 2015 (3) KLT 105 and that sufficient powers are available to this Court by virtue of the enabling powers contained in Section 482 of the Cr.P.C. to recall an order or judgment which has been passed in patent violation of the natural justice, etc. Accordingly, this Court as per the said order dated 9.1.2017 had directed the Registry to number the Criminal Miscellaneous Application so as to hear the matter on merits. 8. Later this Court had also passed an order on 11.7.2017 directing the learned Prosecutor to ensure that separate statements are filed on behalf of the Secretary, Bar Council of Kerala as well as the competent police authorities concerned who had taken steps for executing the warrant issued against the petitioner. This was done with a view to know the correctness of the averments raised in the application regarding the stoppage of practice of the accused's counsel Sri.V.G.Sankaran and about the fact that the warrant was sought to be executed in Mumbai. Accordingly, the Secretary, Bar Council of Kerala, Ernakulam, has filed statement dated 27.7.2017 through the learned prosecutor wherein it is stated as follows : "STATEMENT FILED BY SECRETARY. BAR COUNCIL OF KERALA IN THE ABOVE CASE. 1. As per our records, Sri. Accordingly, the Secretary, Bar Council of Kerala, Ernakulam, has filed statement dated 27.7.2017 through the learned prosecutor wherein it is stated as follows : "STATEMENT FILED BY SECRETARY. BAR COUNCIL OF KERALA IN THE ABOVE CASE. 1. As per our records, Sri. V C Sanikaran, 'Girija', Mamangalam, Palarivattom P.O. Ernakulam, Kochi - 25 was enrolled with the Bar Council of Kerala on 19.11.1995 and his Roll No. is K/1634/1995. He had voluntarily suspended his practice w.e.f. 15.7.2010. He has not renewed his practice till date. 2. This statement is filed as per direction from this Honourable Court in the above case dated 11.7.2017." Thus it is clear from the above said statement of the Bar Council that the applicant/accused's counsel Sri.V.G.Sankaran was enrolled to the Bar Council of Kerala on 19.11.1995 and that he had voluntarily suspended his practice as early as on 15.7.2010 and that he has not renewed his practice till date. Further the Sub Inspector of Police, Pattambi Police Station, who was responsible for executing the warrant against the applicant has also filed a separate statement along with memo dated 21.7.2017 of the learned prosecutor and the relevant part of the said statement of the police official concerned reads as follows : "In accordance with the judgment, the Hon: JFCM Court, Pattambi had issued warrant against the accused with posting the case to 22.02.16 and forwarded the same to City Police Commissioner, Bombay for execution. Accordingly the said warrant was returned by Chunabati Police, Mumbai stating that the accused is not available and is at South Africa. Later the said warrant was issued to SHO, Pattambi through District Police Chief, Palakkad in two times with hearing dates 18.02.17 and 09.05.17. Since the warrantee is a resident of Mumbai, the said two warrants were returned by SHO, Pattambi requesting to extension of hearing dates." The above said statement filed by the Secretary, Bar Council of Kerala, shows that the averments of the petitioner that his counsel had stopped practice long before the final hearing of the revisional proceedings is correct and that the said counsel had suspended his practice as early as on 15.7.2010 and that he has not renewed his practice till date. Further the abovesaid statement of the police authorities would also show that the warrant was sought to be executed in Mumbai, etc. Further the abovesaid statement of the police authorities would also show that the warrant was sought to be executed in Mumbai, etc. and therefore, it clearly shows that the averments of the petitioner that he was based at Mumbai and that he came to know about the outcome of the revisional proceedings only when the warrant was sought to be enforced at Mumbai appears to be correct and tenable. 9. The Apex Court in the decision in Vishnu Agarwal v. State of U.P. and another reported in 2011 (14) SCC 813 : AIR 2011 SC 1232 : 2011 KHC 4158 has dealt with a case where a criminal revision petition was listed before the High Court of Allahabad on which day none had appeared on behalf of the revision petitioner though the Advocates for the respondents had appeared and the High Court had proceeded to consider and dispose of the revision petition on merits after hearing the available parties and without hearing the revision petitioner therein. Subsequently an application was moved by the revision petitioner therein before the High Court for recall of the impugned revisional order dated 2.9.2003 alleging that the case was shown in the computer list and not in the main list of the High Court and hence the learned counsel for the revision petitioner could not noted the case and hence he did not appear. The High Court had allowed the said application to recall the order and the said order was challenged before the Apex Court in the abovesaid proceedings. It was contended before the Apex Court that the order passed by the High Court in recalling the earlier order dated 2.9.2003, is illegal and ultravires inasmuch as it would amount to flagrant violation of the statutory bar engrafted in Section 362 of the Cr.P.C. which mandates that once a judgment or order is signed, the criminal court cannot review or alter the same except for the limited purpose of correcting any clerical or arithmetical mistakes. The appellant before the Apex Court had also placed reliance on the judgment in Hah Singh Mann v. Harbhajan Singh Bajwa reported in AIR 2001 SC 43 : 2001 (1) KLJ (NOC) 18, paragraph 10 which dealt with the bar under Section 362 of the Cr.P.C. The Apex Court in the aforecited judgment in Vishnu Agarwal's case (supra) reported in ( 2011 (14) SCC 813 ) has held in paragraph 8 thereof that the bar in Section 362 cannot be considered in a rigid and over technical manner so as to defeat the ends of justice and that the courts should not give its decision based only on the letter of the law and that if the decision is wholly unreasonable, injustice will follow and that the application filed by the respondent therein was not an application to review or modify the impugned order or judgment but was only to recall the impugned order so as to hear the matter afresh after affording a reasonable opportunity of being heard to the revision petitioner whose counsel had omitted to note the listing of the case. Their Lordships of the Apex Court in Vishnu Agarwal’s case (supra) had also placed reliance on the judgment in Asit Kumar Kar v. State of West Bengal and others reported in 2009 (2) SCC 703 wherein it was held that the distinction between recall and review inasmuch as in a review petition, the court considers on merits where there is an error apparent on the face of the record, whereas in a recall petition, the court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. In this view of the matter, it was held by the Apex Court in Vishnu Agarwal's case (supra) that the impugned order therein passed by the High Court recalling the order on the ground that the affected party was not heard so as to hear the matter afresh, does not suffer from any illegality or infirmity and that the impugned order passed by the High Court was thus confirmed and the appeal was accordingly dismissed. The substantial difference between a proceeding for review and for recall of the impugned order has also been dealt with by the Apex Court in the decision in Asit Kumar Kar v. State of West Bengal and others reported in (2009) 2 SCC 703 : 2009 (1) KHC 645. In this regard it will also be profitable to refer to paragraphs 4 to 7 of the aforesaid decision in Asit Kumar v. State of West Bengal and others reported in 2009 (2) SCC 703 , which read as follows : "4. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. In the seven-Judge Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak (1988) 2 SCC 602 : 1988 SCC (Cri) 372 it has been observed in para 55 thereof: (SCCp. 660) "55 So also the violation of the principles of natural justice renders the act a nullity." 5. One of the counsel relied upon another five-Judge Constitution Bench decision in Rupa Ashok Jurra v. Ashok Hurra (2002) 4 SCC 388 . It is true that in para 9 of the judgment it has been observed that this Court under Article 32 of the Constitution cannot hold as invalid a judgment of this Court by treating it as a nullity. However, the aforesaid judgment does not say that we cannot pass a recall order when that order has been passed without hearing a party. 6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing heard to an affected party. 7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees Assn. v. aghabendra Singh cancelling certain licenses was passed without giving an opportunity of hearing to the persons who had been granted licenses. In these circumstances, we recall the directions in para 40 of the aforesaid judgment. v. aghabendra Singh cancelling certain licenses was passed without giving an opportunity of hearing to the persons who had been granted licenses. In these circumstances, we recall the directions in para 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate court. The Writ Petition Petitions are disposed of with these directions." 10. It is relevant to note that though the abovesaid decision of the Apex Court in Asit Kumar Kafs case (supra) is in relation to a proceeding under Article 226 of the Constitution of India, the conceptual difference between review and recall of impugned orders which has been dealt with therein has been applied by the Apex Court in criminal proceedings, as can be seen from a reading of paragraph 9 of Vishnu Agarwal's case (supra). The Apex Court has again considered the scope of recall of orders on the ground of violation of principles of natural justice in the decision in State of Punjab v. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770 and it will be profitable to refer to paragraph 46 thereof, which reads as follows : "46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/ alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob llahi 1970 Cri. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/ alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob llahi 1970 Cri. LJ 378 (All), Deepak Thanwardas Balwani v. State of Maharashtra 1985 Cri.L.J. 23 (Bom.), Habu v. State of Rajasthan AIR 1987 Raj 83 , Swarth Mahto v. Dharmdeo Narain Singh reported in (1972) 2 SCC 273 : 1972 SCC (Cri.) 676, Makkapati Nagaswara Sastri v. S.S.Satyanarayan (1981) 1 SCC 62 : 1981 SCC (Cri.) 111, Asit Kumar Kar v. State of W.B. (2009) 2 SCC 703 : (2009) 1 SCC (Cri.) 851 : (2009) 1 SCC (L&S) 541 and Vishnu Agarwal v. State of U.R (2011) 14 SCC 813 " The abovesaid dictum laid down by the Apex Court has been applied by this Court in the decision in Pushpangathan v. State of Kerala reported in 2015 (3) KLT 105 . In that case, this Court had considered the petition filed by the accused seeking quashment of the impugned complaint against them. Thus the order was passed by this Court allowing the plea for quashment without hearing the respondent/complainant. Later, the complainant had filed a Criminal Miscellaneous Application in that Criminal Miscellaneous Case praying to recall the said order on the ground that the complainant was not afforded a reasonable opportunity of being heard before the petition was allowed. In the affidavit filed in support of the said application, the Advocate Clerk of the respondent/complainant's counsel had stated that the vakalath was filed on behalf of the complainant by showing the year of the case wrongly, even though the number of the case was correct and in these circumstances, the appearance of the respondent/complainant was not shown in the cause list. This Court after considering the aforecited judgments in the decisions as in Asit Kumar Kar v. State of West Bengal (supra) and Davinder Pal Singh Bullar's case (supra) held that there cannot be any quarrel on the proposition that the bar created under Section 362 of the Cr.P.C. has to be respected. This Court after considering the aforecited judgments in the decisions as in Asit Kumar Kar v. State of West Bengal (supra) and Davinder Pal Singh Bullar's case (supra) held that there cannot be any quarrel on the proposition that the bar created under Section 362 of the Cr.P.C. has to be respected. But the concepts of recall, review and/or alteration are to be distinguished clearly and the alteration and/or review is prohibited by Section 362 of the Cr.P.C. which presupposes the continuance of the order under challenge and effectuation of the same with some changes in it, but if a party seeks the prayer to recall the order, he has to show the legal reasons thereof for challenging its existence and convince the court that the order complained of shall not be allowed to continue or operate. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position or to a stage anterior to the passing of the impugned order or judgment in the matter and that conceptually, review/alteration is done while the order is in existence or force. The exercise undertaken in a review/alteration is to closely examine the order sought to be reviewed so as to find out any illegality or impropriety and for doing so, the existence of the judgment or order must be recognized. When a judgment or a final order is recalled for valid reasons, the resultant effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed in the commencement of the proceedings. In this view of the matter this Court categorically held that the bar under Section 362 of the Cr.P.C does not affect in any manner the power of this Court to recall a judgment or order, if legal grounds are properly established by the complaining party in the light of the legal principles laid down by the Apex Court in the aforecited judgments. Accordingly, this Court found that the complaint made by the applicant therein that he was not afforded a reasonable opportunity of being heard before the impugned order was passed, is tenable and that the interest of justice require that the order is recalled and in that view of the matter the impugned order therein was recalled and the matter was posted for disposal afresh after hearing all the parties concerned. It will be profitable to refer to paragraph 16 of the decision of this Court in Pushpangathan v. State of Kerala reported in 2015 (3) KLT 105 , which reads as follows : "16. There cannot be any quarrel on the proposition that the bar created under S.362 Cr. PC. has to be respected. But the concepts of recall, review and/or alteration are to be distinguished clearly. If we understand the said terms correctly, there will not be any difficulty to resolve the issue. Alteration and/or review prohibited by S.362 Cr.P.C. presupposes the continuance of the order under challenge and effectuation of the same with some changes in it. If a party wants to seek the indulgence of court to recall an order, he has to show a legal reason for challenging its existence and convince the court that the order complained of shall not be allowed to continue or operate. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position; i.e., to a stage anterior to passing any judgment or final order in the matter. Conceptually, review/alteration is done while the order is in existence or force. The exercise undertaken in a review/alteration is to closely examine the order sought to be reviewed so as to find out any illegality or impropriety. For doing so, the existence of the judgment or order must be recognized. When a judgment or a final order is recalled for valid reasons, the resultant legal effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed at the commencement of the proceedings. For doing so, the existence of the judgment or order must be recognized. When a judgment or a final order is recalled for valid reasons, the resultant legal effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed at the commencement of the proceedings. Therefore, I am of the view that S.362 Cr.P.C. does not affect the power of this Court to recall a judgment or order, if legal grounds are properly established by the party complaining." Therefore, it is now well settled by the aforestated judgments of the Apex Court as well as that of this Court that conceptually and in substance there is a distinction between review and recall and that what is prohibited by the mandate of Section 362 of the Cr.P.C. is review or alteration of the judgment or order and that this Court by virtue of the special powers conferred under Section 482 of the Cr.P.C, could recall an order for the grounds as enumerated in the aforecited judgments and where this Court is convinced that the party could not take part in the hearing process and that there was flagrant violation of principles of natural justice, etc., then this Court could invoke its jurisdiction to recall the impugned order so as to dispose of the matter afresh after hearing all the affected parties concerned. 11. Coming to the facts of this case, it is not in dispute that the applicant had initially engaged a counsel of his choice to defend him in the Criminal Revision Petition. It is also not in serious dispute that the petitioner was based in Mumbai and that his counsel who had filed vakalath in the revisional proceedings had suspended his practice with effect from 15.7.2010 as can be seen from the statement filed by the Secretary of the Bar Council of Kerala. It is also now clear that petitioner was based in Mumbai at the time when the warrant was sought to be executed pursuant to the impugned revisional order. It is also now clear that petitioner was based in Mumbai at the time when the warrant was sought to be executed pursuant to the impugned revisional order. Therefore, the version of the petitioner that he had taken all the reasonable measures possible under the circumstances to engage a counsel of his choice in the revisional proceedings and that he was appraised by his counsel that the matter might take 5 or 7 years for its final disposal and that his counsel had later stopped practice and had not returned back the case file are found to be true. Therefore, the applicant's case that he went undefended due to no fault of his, etc., appear to be true and tenable. No objection has been filed by the respondent/complainant to rebut any of these factual aspects. More particularly, even at the time of institution of this application, the applicant had also ventured to appraise this Court that he is fully willing to deposit before the trial court the entire compensation amount of Rs.2,70,000/- ordered by this Court in the impugned revisional order, etc. It was brought to the notice of this Court that the applicant had earlier deposited an amount of Rs.25,000/- before the trial court in relation to this case at the stage of the appellate consideration. Later pursuant to the orders passed by this Court the petitioner has filed the balance amount of Rs.2,45,000/- out of the total compensation amount of Rs.2,70,000/- before the trial court. Therefore, these circumstances clearly show that the applicant has come out with a truthful case and that he has even proved his bonafides by venturing to deposit the entire compensation amount before the trial court. 12. It is also to be noted that the judgment of the appellate court was in favour of the applicant/accused in as much as the order of the trial court was set aside and the matter was remitted to the trial court for consideration afresh, whereas the impugned revisional order passed by this Court restored the trial court order which imposes not only the compensation, but also stipulates substantive sentence of three months' simple imprisonment. Therefore, serious adverse consequences follow from the impugned revisional order. Therefore, serious adverse consequences follow from the impugned revisional order. In the light of the abovesaid facts, this Court is convinced that the extraordinary discretionary powers conferred on this Court under Section 482 of the Cr.P.C. could be befittingly applied in the facts and circumstances of this case taking into account the legal principles laid down by the Apex Court and by this Court in the aforecited judgments. True that the court should be cautious in interfering with an order passed in a revision petition. There could be cases where such application for recall of impugned orders may be filed on flimsy pretext. Merely because of such possibilities of abuse, is by itself, should not fetter this Court's discretionary power to recall the impugned order in a case which deserves such discretion to be exercised. 13. Sri.P.Martin Jose, learned counsel appearing for the applicant/accused, has also stated before this Court that in case this Court is recalling the impugned order, then he is prepared to file the argue revisional matter without any further delay subject to the convenience of the respondent/complainant. In the light of all these aspects, it is ordered in the interest of justice that the impugned order dated 5.12.2012 rendered by this Court in Crl.R.P.No.1336 of 2002 will stand recalled inasmuch as the accused was not afforded a reasonable opportunity of being heard before the passing of that order. Resultantly, it is ordered that Criminal Revision Petition No. 1336 of 2002 will stand restored to the file of this Court for disposal afresh after hearing all the affected parties concerned. The Registry will forthwith call for the LCR. List the revision petition for disposal in the petition list on 3.11.2017. With these observations and directions, the Criminal Miscellaneous Application stands finally disposed of.