IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.MC.No. 1442 of 2009() -------------------------------------- ST.1814/07 OF JFMC V, KOTTAYAM ..... PETITIONER(S): ------------------------- M.T.RADHAKRISHNAN, THEKKEKUTTU HOUSE, T.P.PURAM P.O., VAZHOOR VILLAGE. BY ADV. MR.K.VINOD CHANDRAN RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. M.N.CHANDRABOSE, S/O. NANAPPAN, MEENACHIRA HOUSE, THIRUVARPPU VILLAGE. R1 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CMA. NO.2427/2009 IN CRMC.NO.1442/2009 DISMISSED 2/06/2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1442 OF 2009 =========================== Dated this the 2nd day of June,2009 ORDER Petitioner is the accused in S.T.1814/2007 on the file of Judicial First Class Magistrate IV, Kottayam taken cognizance by the learned Magistrate for the offence under section 138 of Negotiable Instruments Act on a complaint filed by second respondent. When the second respondent was examined as PW1 and case was posted for cross examination to 2.3.2009 the counsel appearing for the petitioner was not available for cross examination of PW1. Therefore the evidence was closed and case was posted for questioning under section 313 of Code of Criminal Procedure to 13.3.2009. Petitioner filed Annexure II petition under section 311 of Code of Criminal Procedure on 13.2.2009 to recall PW1 for cross examination stating that the counsel was engaged in cross examination of a witness before Sub Court, Kottayam and the failure to cross examine was not wilful. Under Annexure III order learned Magistrate dismissed the petition holding that attempt is to drag on the proceedings. This petition is filed Crl.M.C.1442/2009 2 under section 482 of the Code of Criminal Procedure to quash Annexure III order and to permit the petitioner to cross examine the complainant by recalling PW1. 2. Learned counsel appearing for the petitioner was heard. 3. Annexure III order shows that the petition was dismissed for two reasons. One is that the petitioner was not present on that day and second the attempt is to drag on the proceedings. For the purpose of cross examination of PW1, presence of the accused is not necessary. Therefore dismissal of the application on that ground was not justified. Learned Magistrate has not stated why the attempt of the petitioner to get PW1 cross examined by recalling him is an attempt to drag on the proceedings. Instead of dismissing the application, if the petition was allowed the case could have been disposed by this time. In such circumstance, Annexure 3 order is quashed. Judicial First Class Magistrate, Kottayam is directed to recall PW1 and permit the accused to cross examine PW1 on a specific date. It is made clear that petitioner shall make all arrangements to cross examine the witness on that date and shall not seek any adjournment. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- Crl.M.C.1442/2009 3 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006