IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU TUESDAY, THE 4TH SEPTEMBER 2007 / 13TH BHADRA 1929 Crl.MC.No. 4185 of 2003(C) -------------------------- AGAINST THE ORDER DATED 20/03/2003 IN CRMP.1098/2003 IN CC.536/98 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER: COMPLAINANT ----------------------- R.VIJAYARAJAN, S/O. RAMASWAMY NADAR, MANAGING PARTNER, M/S.A.R. & CO., KADAPPAKKADA, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: ACCUSED -------------------- C.RASHEED, KALLUVILA KIZHAKKETHIL, KARICODE, KOLLAM-5. BY PUBLIC PROSECUTOR, SRI C.K.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/09/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O R D E R STEPS NOT TAKEN. DISMISSED. SD/- K.R.UDAYABHANU, JUDGE 04/09/2007 \\TRUE COPY// A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4185 of 2003-C - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of August, 2009. Order Petitioner is prosecuting the respondent herein for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.536 of 1998 on the file of the Chief Judicial Magistrate's Court, Kollam. His grievance is that the request made by him to examine him in the case was turned down by the learned Magistrate without any justifiable reasons and solely on the ground that he had not explained as to how his evidence is material in the case. 2. It appears that the Power of Attorney Holder of the complainant was examined in the case as Pw.1. Thereafter the case was posted for questioning of the accused under Section 313 of the Code of Criminal Procedure. It was at that stage that the petitioner who is the complainant in the case, had sought permission of the Court to get himself examined. 3. According to the petitioner, he had authorised his Power of Attorney Holder to give evidence on his behalf, since he was not available at the relevant point of time. But ultimately when the case was posted for questioning the accused, he was available in station. One material aspect with regard to the date of issuance of the cheque which was in the direct knowledge of only the petitioner, had to be brought in evidence. It was in the above Crl.M.C.4185/03 2 circumstances that he had made the prayer. 4. Though notice has been served on the respondent/complainant by affixture and also through his counsel who represents him before the court below, he has not appeared either in person or through counsel. 5. Having heard learned counsel for the petitioner and having perused the impugned order, I am satisfied that petitioner can be granted an opportunity to get himself examined. Learned counsel submits that petitioner will make himself available before the trial court for examination on August 26, 2009 or any such other date convenient to the Court. The above submission is recorded. The impugned order is set aside. 6. Petitioner shall appear before the court below on August 26, 2009 for his examination. He shall also appear on any other subsequent date, if the court below so directs. Learned Magistrate shall advance the hearing of the case to 26th August, 2009. 7. Learned counsel undertakes that he will communicate the order to the learned counsel for the accused also. Writ Petition is disposed of in the above terms. A.K. Basheer Judge. an.