IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH SEPTEMBER 2009 / 2ND ASWINA 1931 Crl.MC.No. 3059 of 2009() ------------------------- CRA.973/2006 of ADDL. SESSIONS COURT, FAST TRACK COURT I, TRIVANDRUM. .................... PETITIONER(S): 1ST RESPONDENT: ------------------------------------------------------ E.SREERANJINI AMMA, EASWARIVILASAM, CHENGALLOOR, POOJAPPURA, THIRUVANANTHAPURAM. BY ADVS. MR.P.S.SREEDHARAN PILLAI, SMT.C.G.PREETHA. RESPONDENT(S): PETITIONER & STATE: ------------------------------------------------------------- 1. SUBHASH , 'POURANAMI' MUTIYAVILA, KATTAKADA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3059 OF 2009 ------------------------------------------ Dated 24th September 2009 O R D E R Petitioner is the complainant in C.C.204/2004 on the file of Judicial First Class Magistrate-V, Thiruvananthapuram taken cognizance for the offence under Sections 138 of Negotiable Instruments Act. Under Annexure-I judgment, first respondent was convicted and sentenced for the offence under Section 138 of Negotiable Instruments Act. He filed Crl.A.973/2006 challenging the conviction and sentence. On hearing the appeal in part, learned Additional Sessions Judge invoking the power under Section 311 of Code of Criminal Procedure, passed Annexure-II order dated 13/8/2009 to summon and examine Branch Manager of Canara bank, Chalai Branch and directed him to appear on 30/9/2009. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-II order contending that there is no justification for invoking the power under Section 311, when from the evidence it is clear that CRMC 3059/09 2 the cheques issued by first respondent in favour of Mohan Kumar and Asha.G.Nair were not issued as claimed by him and in such circumstances, the order is to be quashed. 2. Learned counsel appearing for petitioner was heard. 3. Learned counsel pointed out that first respondent had subsequent to the chief examination of the petitioner in the case filed a private complaint alleging that said two cheques were not issued to Mohan Kumar and Asha.G.Nair but to the petitioner and petitioner had misused the blank cheque issued earlier and thereby committed various offences under Indian Penal code. Learned Magistrate sent the complaint for investigation under Section 156(3) of Code of Criminal Procedure and after investigation a refer report was filed. It is argued that though first respondent filed protest complaint, it was also dismissed and in such circumstances, learned Additional Sessions Judge should not have invoked the power under Section 311 of Code of Criminal Procedure, without CRMC 3059/09 3 considering these aspects and hence the order is to be quashed. Learned counsel also argued that O.S.405/2002 was instituted by the petitioner for the amount covered by the dishonoured cheque and under Annexure-III judgment it has decreed and it is become final and in such circumstances, learned Additional Sessions Judge should not have allowed first respondent to protract the matter further by invoking the power under Section 311 of Code of Criminal Procedure. 4. There is force in the submission of the learned counsel. But, in view of the fact that learned Additional Sessions Judge has invoked the power under Section 311 of Code of Criminal Procedure in the interest of justice and no prejudice as such, will be caused to the petitioner even if, the witness is to be examined, I do not find it necessary to interfere with Annexure-II order. Grievance of the petitioner is that hearing of the appeal will be protracted further. It could be solved if learned Additional Sessions Judge is directed to dispose the appeal after examination of the witness summoned to 30/9/2009 expeditiously, without CRMC 3059/09 4 further delay. Petition is dismissed. Learned Additional Sessions Judge is directed to dispose the criminal appeal without further delay. M.SASIDHARAN NAMBIAR, JUDGE. uj.