IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 Crl.MC.No. 106 of 2010() ----------------------------------- CMP.2681/2009 IN S.T.NO.261/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, HARIPAD .................... PETITIONER/ACCUSED ---------------------------------- K.V. ANANTHAKRISHNA PILLAI, AGED 72 YEARS, S/O. VELU PILLAI, RESIDING AT KOYIKKOLIL HOUSE, NANGIYARKULANGARA.P.O, NANGIYARKULANGARA. BY ADV. MR.G.ANANTHANARAYANAN RESPONDENTS/STATE AND COMPLAINANT --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.G. JANARDHANAN PILLAI, AGED 64 YEARS, S/O. KESAVA PILLAI, GOURISANKARAM HOUSE, PILAPPUZHA MURI, HARIPAD. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.106 OF 2010 =========================== Dated this the 12th day of January,2010 ORDER Petitioner is the accused in S.T.261/2008 on the file of Judicial First Class Magistrate Court-II, Haripad taken cognizance for the offence under section 138 of Negotiable Instruments Act on a complaint filed by the second respondent. Petitioner filed CMP 2681/2009 for recording the chief examination of the second respondent in open court. By Annexure A5 order it was dismissed. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure A5 order, based on the decision of a learned single Judge of the Gujarat High Court in Samirbhai H.S.Bajariya v. Rizwana (2009(1) KLT SN 50.) Learned Magistrate dismissed the petition under Annexure A5 order. Crl.M.C.106/2010 2 2. Learned counsel appearing for the petitioner was heard. 3. As rightly found by the learned Magistrate in Annexure A5 order, sub section (1) of Section 145 of Negotiable Instruments Act specifically provides notwithstanding anything contained in the Code of Criminal Procedure evidence of the complainant may be given by him on an affidavit and subject to all just exceptions be read in evidence at the time of trial. Muslim Women (Protection of Rights on Divorce) Act or Rules does not enable a Magistrate to accept the evidence, in a petition filed by the divorced wife on affidavit. That is not the case in respect of an offence punishable under section 138 of Negotiable Instruments Act. When sub section (1) of Section 145 provides that notwithstanding anything contained in the Code of Criminal Procedure, the evidence of the complainant may be given by him on affidavit, learned Magistrate was justified in dismissing the Crl.M.C.106/2010 3 petition for recording the chief examination in open court. I find no reason to interfere with the order. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006