IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Crl.MC.No. 3728 of 2009() ------------------------- CC.1181/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA .................... PETITIONER: ACCUSED IN C.C. ------------------------------ BEENA JACOB, 24 YEARS,D/O.JACOB JOHN, BEENA COTTAGE, AMALLOOR, MANJADI, THIRUVALLA, PATHANAMTHITTA. BY ADV. SRI.R.SANTHOSH BABU RESPONDENT: COMPLAINANT & STATE ---------------------------------- 1. PUNNOOSE JACOB,THURUTHISSERIL,AMALLOOR, MANJADI,THIRUVALLA. 2. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ----------------------------- Crl.M.C No.3728 of 2009 ------------------------------ Dated this the 19th day of November, 2009. O R D E R The petitioner is the accused in C.C.No.1181/2004 on the file of the Judicial First Class Magistrate Court, Thiruvalla, taken cognizance of the offence under Section 138 of the Negotiable Instruments Act, on the complaint filed by the first respondent. After the examination of first respondent as PW1, he filed C.M.P No.6626/2009 under Section 311 of the Code of Criminal Procedure to re-call him for further examination. It was objected by the petitioner by filing Annexure D objection. The learned Magistrate by Annexure E order, allowed the petition on cost. This petition is filed under Section 482 of the Code of Criminal Procedure to quash Annexure D order. 2. The learned counsel appearing for the petitioner was heard. The argument of the learned counsel is that the learned Magistrate did not properly consider the application for recalling PW1 and permitted first respondent to clarify the evidence which is against him. The argument is that PW1 was cross examined on the facts, based on the proof affidavit filed by him and there is no chance for any mistake being committed due to the pendency of C.C.No.1181/2004 and the petition was filed as an afterthought at a later stage and in such circumstance learned Magistrate Crl.M.C No.3728 of 2009 : 2 : should not allowed the petition. It is also argued that Annexure E order does not show valid reasons. 3. Annexure E order passed by the learned Magistrate shows that on appreciating the facts and the evidence of PW1, learned Magistrate found that in the interest of justice for a just decision of the case, PW1 is to be recalled and examined. If the grievance of the petitioner is that by such examination PW1 will depose against the facts already deposed by him, petitioner is at liberty to cross examine and bring out the facts which are facts allegedly raised as after thought. When petitioner is at liberty to cross examine PW1 after such evidence, I find no reason to interfere with the discretion exercised by the learned Magistrate invoking the powers under Section 311 of the Code of Criminal Procedure. It is made clear that learned Magistrate shall give an opportunity to the petitioner, to cross examine the PW1. This petition is disposed. Sd/- M.SASIDHARAN NAMBIAR, JUDGE //True Copy// PA to Judge ab