IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 Crl.MC.No. 3683 of 2008() ------------------------- AGAINST THE ORDER DATED 20/09/2008 IN CRMP 333/08 IN ST.3007/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVUR ST.3007/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PARAVUR (CRMP 447/2008) .................... PETITIONER(S): ACCUSED ---------------------- MARY SKARIACHAN, 44/2201 B, GRACE LAND, BEHIND ST. ANTONY'S CHURCH, ST. ANTONY'S ROAD, KALOOR, KOCHI-682017. BY ADV. SRI.SURESH JOSE RESPONDENT(S)/COMPLAINANT: ----------------------------------------------- 1. C.P. JACOB, AGED 42 YEARS, CHEMMANASSERY HOUSE K.M.K. JUNCTIOIN, 11/110, PARAVOOR P.O. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3683 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2008 O R D E R The petitioner is the accused in a prosecution under Section 138 of the N.I. Act. Prosecution evidence was closed. The matter was posted for defence evidence. An application was filed by the petitioner to send the cheque for expert opinion. That petition was allowed on 10.9.2008. The case was posted to 20.9.2008 with direction to take steps. On 20.9.08, when the case was called the petitioner's counsel was absent. No steps had been taken also. In these circumstances it was observed that the said petition – to send the cheque to the expert – was closed. 2. The petitioner's counsel promptly on 26.9.08 filed Annex.A6 application to forward the cheque to the expert. That prayer was rejected by Annex.A7 order dt.26.9.08. Steps having not been taken on 20.9.08 the request does not deserve to be entertained, it was held. Crl.M.C.No. 3683 of 2008 2 3. The learned counsel for the petitioner submits that the failure on the part of the petitioner and his counsel to reach the court in time on 20.9.08 occurred only because of the interruption to traffic. There was no wilful default on their part. In these circumstances the learned Magistrate must have granted the request, especially taking note of the fact that on 26.9.08 proper application has been filed. 4. I find merit in the submissions of the learned counsel for the petitioner. I am satisfied that the Crl.M.C. can be disposed of without waiting for issue and return of notice to the respondent/complainant. Of course, for the default in not taking steps by 20.9.08 and for not making the subsequent application prior to 26.9.08, appropriate terms can be insisted to compensate the inconvenience suffered by the complainant. 5. In the result: a) This Crl.M.C. is allowed subject to conditions. Annex.A5 (order dt.20.9.08 in Crl.M.P. 333 of 2008) and Annex.A7 (order dt. 26.9.08 in Crl.M.P. 447 of 2008) shall stand set aside on condition that Crl.M.C.No. 3683 of 2008 3 the petitioner deposits/pays an amount of Rs.250/- as cost to the complainant on or before 13.10.2008. 6. The petitioner shall take all necessary steps by 13.10.2008. Needless to say, the request of the petitioner to adduce further evidence shall also be considered by the learned Magistrate on merits. 7. Hand over the order. (R. BASANT) Judge tm