IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 Crl.MC.No. 880 of 2011() ------------------------ PETITIONER/ACCUSED --------------------------------- SHAHUL HAMEED.M.P, S/O. NOORUDHIN, MUTHIPARAMBATH HOUSE, VYDARANGADI.P.O, RAMANATTUKARA, KOZHIKODE - 673 633. BY ADV. DR.V.N.SANKARJEE RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P. SUJANAPAL, S/O. SEKHARAN, AGED 56 YEARS, IST FLOOR, PARCO COMPLEX ANNEX, 18193, KALLAI ROAD, KOZHIKODE - 673 602./ PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA R2 BY ADV. SRI.K.RAKESH ROSHAN THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.880 of 2011 --------------------------------------- Dated this 11th day of April, 2011 ORDER Petitioner is accused in C.C.No.624 of 2009 of the Court of learned Judicial First Class Magistrate-VI (Special Court for Maradu Cases), Kozhikode, aggrieved by order dated March 16, 2011 dismissing C.M.P.No.593 of 2011. That is a petition filed by the petitioner who faces trial for prosecution under Sec.138 of the Negotiable Instruments Act to summon witnesses on his side. Learned Magistrate has dismissed that petition by the impugned order. Learned counsel contends that having regard to the defence set up by petitioner examination of witnesses as requested was necessary. Learned counsel for second respondent/complainant submitted that even in the statement given by petitioner under Sec.313 of the Code of Criminal Procedure (for short, "the Code”) there is no mention about presence of witnesses. Attempt of petitioner is only to protract the proceeding. 2. I have gone through the order under challenge and find that another petition for similar prayer was dismissed by the learned Magistrate on a prior occasion. It is submitted, and it is Crl.M.C.No.880 of 2011 -: 2 :- not disputed also that thereafter petitioner was examined as a witness. It is while so, petitioner filed C.M.P.No.593 of 2011. Learned counsel for petitioner submits that petitioner is satisfied with examining witness Nos.1 to 3 in Annexure-A6, list of witnesses and that petitioner may be permitted to examine other witnesses. 3. It is true that going by the impugned order another petition with identical prayer was dismissed by the learned Magistrate. But it is thereafter that petitioner was allowed to be examined as a witness on his side invoking power under Sec.315 of the Code. Having heard learned counsel for second respondent I do not think that this Court must stand by technicalities and say that because an earlier C.M.P was dismissed, request of petitioner for examination of witnesses should be disallowed since learned Magistrate has permitted petitioner to be examined as a witness after the dismissal of earlier petition. 4. But, it is to be noted from the order under challenge and Annexure-A6, list of witnesses that the point sought to be proved through witnesses is not mentioned in the said list. When a witness list is filed, whether it is by the prosecution or by the defence, it has to be stated the point sought to be proved through Crl.M.C.No.880 of 2011 -: 3 :- the witnesses so that the opposite party can understand the point sought to be proved through the witness concerned. Annexure- A6, list does not satisfy that requirement. 5. Nor am I impressed by the contention that because presence of witnesses is not stated in the statement under Sec.313 of the Code, he should not get an opportunity to examine the witness. Having regard to the circumstances of the case I am inclined to set aside the impugned order and remit C.M.P.No.593 of 2011 to the learned Magistrate for fresh consideration to the extent it concerned witness Nos.1 to 3 in Annexure-A6, list of witness. It is open to the petitioner to file a statement before the learned Magistrate specifying the points sought to be proved by witness Nos.1 to 3 in Annexure-A6, list and on such statement being filed learned Magistrate shall pass appropriate orders after hearing counsel on both sides on the request to summon the said witnesses. With the above direction this criminal miscellaneous case is allowed and the impugned order is set aside. Petitioner shall file his statement if any as aforesaid in the court below on or before 18.04.2011. (THOMAS P JOSEPH, JUDGE) Sbna/-