IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 Crl.MC.No. 2242 of 2010() ------------------------- CMP.229/2010 of JUDL. MAGISTRATE OF FIRST CLASS, CHENGANACHERRY .................... PETITIONER(S): ACCUSED ---------------------- AHAMMED KABEER, K.R.L. COCHIN NOW RESIDING AT 2ND FLOOR, OOTTY LODGE, THIRUNAKKARA, KOTTAYAM. BY ADV. SRI.R.SUNIL KUMAR SMT.A.SALINI LAL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CELINE FRANCIS, PARACKAL HOUSE, P.C.KAVALA.P.O., CHANGANASSERY. PUBLIC PROSECUTOR SRI. KAMMAPPU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. NO. 2242 of 2010 * * * * * * * * * * * * * * * * * * Dated: 22nd day of June, 2010 ORDER Petitioner who is the accused in S.T. No. 168/07 before the J.F.C.M. II, Changanassery in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 involving a cheque for Rs. 2,00,000/- challenges Annexure – 4 order dated 9-6-2010 in C.M.P. No. 229 of 2010 in S.T. No. 163 of 2007 as per which the learned Magistrate dismissed the petitioner's application to re-open the evidence and to cross- examine P.W.1/the complainant. 2. According to the petitioner, the amount due to the 2nd respondent/complainant was already paid. But he did not give back the cheque and thereupon the petitioner had issued Annexure-I notice to the complainant and the said notice had returned unclaimed but the petitioner could not confront the complainant examined as P.W.1 with the said Crl.M.C. NO. 2242 of 2010 -:2:- notice which was misplaced. Hence, this petition. 3. If the plea of the petitioner is one of discharge, then the burden was on the petitioner to substantiate his plea of discharge. This prosecution was launched three years ago. The petitioner very well knew that he received the statutory notice and a prosecution under Sec. 138 of the N.I. Act was about to be launched. Inspite of that he had not cared to produce materials which were relevant. He cannot be permitted to indulge in such dilatory tactics. I see no reason to interfere with the order passed by the court below refusing to re-open the evidence. In case the petitioner files an appeal challenging the conviction, he can canvass the correctness of Annexure IV order in such appeal. This Crl.M.C. is accordingly dismissed. Dated this the 22nd day of June, 2010. V. RAMKUMAR, (JUDGE) Crl.M.C. NO. 2242 of 2010 -:3:- ani.