IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH MARCH 2011 / 19TH PHALGUNA 1932 Crl.MC.No. 1773 of 2006 -------------------------------- AGAINST THE ORDER DATED 22/06/2006 IN Crl.M.P.2368/2006 IN CC.257/2001 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER : 2ND ACCUSED: ------------------------------------------ MR.VILAS SATBHAI, 810/A, BILWAKUNJU, BHANDRARKAR ROAD, PUNE-411 004. BY ADV. SRI.SREELAL N.WARRIER SRI.JIMMY GEORGE (VATTATHARA) RESPONDENTS : STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M/S. ANCHOR DAEWOO ELECTRONICS LTD., 46/47, MAKER CHAMBER VI, NARIMAN POINT, MUMBAI, REPRESENTED BY PRASAD M., ACCOUNTS OFFICER, M/S. DAEWOO ANCHOR ELECTRONICS LTD.,32/18388, PADIVATTOM, BYEPASS ROAD, KOCHI-24. ADV. SRI.S.K.AJAY KUMAR FOR R2 PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1773 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of March, 2011 Order Petitioner who has been arraigned as accused No.2 in a prosecution under Section 138 of the Negotiable Instruments Act has preferred this petition under Section 482 of the Code of Criminal Code. His grievances are two fold: (a) The witness who was examined as the authorised representative of the complainant-Company did not make himself available for cross examination by the counsel for the petitioner even though two opportunities were given to the witness to appear and face the cross examination. (b) The learned Magistrate rejected petitioner's application praying for dismissal of the complaint, since there was no acceptable evidence available on record to question him under Section 313 of the Code. 2. It is beyond controversy that an authorised representative of the complainant was examined before the court below on his behalf. But after his chief examination, the defence counsel could cross examine this witness. The case was adjourned for want of time. On the next date of posting, the witness did not turn up. It is on record that two further adjournments were granted by the court below to enable the complainant to produce the witness. But the witness never Crl.M.C.No.1773 of 2006 : 2 : turned up, and therefore, the learned Magistrate closed the evidence of the complainant and posted the case for questioning the petitioner/accused under Section 313 of the Code. But since the petitioner failed to appear, the learned Magistrate issued a non- bailable warrant against him. It was at that stage that he made a motion before the court below praying that the complaint be dismissed since there was no acceptable evidence on record warranting his questioning under Section 313 of the Code. A copy of the said application is on record as Annexure A2. The learned Magistrate however dismissed the application and passed Annexure A3 order directing the petitioner to appear before him for questioning. 3. The impugned order does not give any reason as to why the learned Magistrate did not deem it fit to take any coercive steps against the witness for his failure to appear before the court to complete his examination. Similarly, there is no clue as to why the complainant was not given any peremptory direction in this regard. Having perused the impugned order I have no hesitation to hold that the grievance of the petitioner is eminently valid and justifiable. 4. Learned counsel for the petitioner has invited my attention to Section 33 of the Evidence Act which is extracted hereunder: “33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein Crl.M.C.No.1773 of 2006 : 3 : stated:--Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, of if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided--- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.” (emphasis supplied) 5. As has been noticed already, the complainant was given ample opportunity to produce his witness before the court for further cross examination. But the complainant did not apparently take any steps to produce the witness. Moreover, the complainant did not have a case that the witness was no more available or that he could not be traced out or that he had become incapable of Crl.M.C.No.1773 of 2006 : 4 : giving evidence. Still further, the complainant had no case that the petitioner/accused had kept the witness out of the way. 6. However, according to the learned counsel for the complainant, the witness did not appear before the court since he had resigned from the complainant-Company. Though the complainant had made an oral request before the learned Magistrate to allow him to examine another witness, the court below did not give such an opportunity. 7. Anyhow, the record does not indicate that any formal application was filed by the complainant before the court below in this regard. Going by the provisions contained in Section 33 of the Act, the evidence given by a witness will become relevant only under the circumstances referred to therein. The second proviso further postulates that the evidence of the party or witness will become relevant only if the adverse party had the right and opportunity to cross examine the witness. 8. Admittedly the petitioner did not get an opportunity to complete his cross examination. In that view of the matter, the evidence adduced by the witness on the side of the complainant could not have been treated as part of the admissible evidence. If that be so, the question whether the petitioner could have been asked to answer the questions under Section 313 of the Code can be answered only in the negative. Crl.M.C.No.1773 of 2006 : 5 : 9. As has been mentioned earlier, the impugned order is totally silent on these aspects. The learned Magistrate has passed the impugned order without adverting to the issue raised before it. In that view of the matter I have no hesitation to quash Annexure A3 order. I do so. 10. It is made clear that the court below shall rely on the evidence recorded through the witness of the complainant who was examined as Pw.1 only if he appears and he is permitted to be cross examined by the petitioner. Otherwise the evidence that is recorded shall be eschewed totally. 11. However it will be open to the complainant to examine other witnesses, if any, on his side. Petitioner shall necessarily be given an opportunity to cross examine those witnesses. It will be open to the petitioner also to adduce defence evidence on his side at the appropriate stage. 12. The court below shall dispose of the case as expeditiously as possible at any rate within six months from the date of receipt of a copy of this order. 13. The Crl.M.C is disposed of in the above terms. A.K. Basheer Judge. an.