IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.MC.No. 3613 of 2008() ------------------------- PETITIONER(S): WITNESS NO.1: ---------------------------- M.K.DAMODARAN, SENIOR ADVOCATE, "THANUSHREE", CHITTOOR ROAD, ERNAKULAM NORTH, KACHERIPADY, KOCHI-682 018. BY ADV. SRI.K.JAYAKUMAR SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA RESPONDENT(S): COMPLAINANT, ACCUSED AND STATE: ---------------------------------------------- 1. L.K.PRABHU, LAKSHANA, CONVENT ROAD, ERNAKULAM, KOCHI-682 035. 2. T.N.MURALEEDHARAN, PROPRIETOR, PRIYA INDUSTRIES, SRUTHY, HOUSE NO. 40/2303, S.R.M ROAD, KALOOR, KOCHI-682 017. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.3613 of 2008 ---------------------------------------- Dated this the 25th day of September 2008 O R D E R The petitioner, a former Advocate General of this State and a senior counsel of this court has come to this court with this application under Section 482 Cr.P.C to complain to this court that he is being unnecessarily summoned as a witness in a pending prosecution under Section 138 of the Negotiable Instruments Act. It is submitted that examination of the petitioner is really not necessary and the summons issued by the Magistrate to examine him as a defence witness may be quashed. 2. The factual scenario was ascertained. The complainant alleges that in discharge of a legally enforcible debt/liability, the cheque in question for Rs.1,00,000/- was issued by the accused to the complainant which was dishonoured on the ground of insufficiency of funds. Notice of demand was duly issued. The same was promptly replied by Ext.P7 marked before the court below which has been placed before me for my perusal. In that reply notice, the accused has taken up a definte stand that he is a client of the petitioner and when he needed money Crl.M.C.No.3613/08 2 badly, the petitioner introduced him to the complainant, a private financier. An amount of Rs.50,000/- was advanced. But the financier demanded and the petitioner conveyed to the accused that cheque for double the amount will have to be issued. Therefore, according to the accused, though the real liability was only Rs.50,000/-, cheque for Rs.1,00,000/- was issued by him only as security without any apprehension that the same shall be presented for encashment. The obvious suggestion is that the intervention of the petitioner and the respectability of the petitioner assured the accused that the cheque will not be misused. 3. Payment was not made as demanded. Complaint was filed. Cognizance was taken. Trial commenced. When the complainant was examined, specific suggestions were made to the complainant about the involvement of the petitioner in the transaction. Though specific details were not put to the complainant, it is certainly brought to the notice of the complainant and suggested to him that the petitioner was involved in the transaction. Crl.M.C.No.3613/08 3 4. Later, when examined under Section 313 Cr.P.C, (a copy of the 313 statement is also placed before me for my perusal by the learned counsel for the petitioner), it was suggested that it was the petitioner who introduced the accused to the complainant. The cheque for double the amount was accordingly given, it was suggested. Thereafter, a defence witness list was filed by the accused in which the petitioner was arrayed as the first witness. On receipt of summons, the petitioner filed an application before the Magistrate - in fact, the petition was filed by a counsel on behalf of the petitioner and the petition was not supported by any affidavit of the petitioner. I shall ignore that technicality. In that petition, it was contended that the petitioner does not have any relevant material to be offered in evidence and that his examination may be dispensed with. The learned Magistrate, by the impugned order, rejected that application. 5. The accused has a burden under Section 139 of the Negotiable Instruments Act to rebut the presumption. He must therefore be granted reasonable opportunity to rebut the presumption and establish his case. Ext.P7 reply notice Crl.M.C.No.3613/08 4 specifically alleges the involvement of the petitioner. Whether that defence be right or wrong can only be decided by the court in the course of the trial. It cannot for a moment be assumed in the facts and circumstances of this case that the citing the petitioner as a witness is with any oblique motive. The plea raised is subtle. The respectability of the petitioner had acted as assurance for the accused to issue cheque for double the amount to the complainant with no apprehension that the same may be misutilised by the complainant. This is the plea. 6. I shall not embark on a detailed discussion about the acceptability of the contention. Suffice it to say that I am not persuaded to agree that examination of the petitioner is not at all necessary for a proper and just disposal of the case. I am unable to agree that the discretion under Section 254(2) Cr.P.C was exercised by the Magistrate in any incorrect, grossly erroneous or perverse manner. 7. I am certain that the petitioner shall only be happy to assist the court in the truth discovery process. But it must be ensured by the learned Magistrate that the senior counsel is not put to any unnecessary difficulties or embarrassment on account Crl.M.C.No.3613/08 5 of such insistence on his examination as a witness. I am satisfied that the learned Magistrate can be directed to post the case specifically to a date after ascertaining the convenience of the parties at any specified time on such date. On such date of posting, the petitioner's examination must be completed also. With the above observations/directions, this Crl.M.C is dismissed. (R.BASANT, JUDGE) jsr Crl.M.C.No.3613/08 6 Crl.M.C.No.3613/08 7 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008