IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1154 of 2009(Y) ------------------------------- AGAINST THE ORDER DATED 5/2/2009 IN CRMP 49/09 IN ST.147/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, VATAKARA .................... REVN. PETITIONER: PETITIONER ------------------------------- P.K.CHANDRAN,MANAGING DIRECTOR, LICHI AND LICHIN CHIT FUNDS (P) LTD., BRANCH OFFICE.P.O.,NUT STREET, VATAKARA. REP. BY POWER OF ATTORNEY HOLDER SURENDRAN E.M. S/O.CHATHU,AGED 45 YEARS, EDATHUM MEETHAL(H), P.O.PUTHUR, VATAKARA. BY ADV. SRI.P.M.HABEEB RESPONDENTS: ACCUSED AND STATE -------------------------------- 1. T. ASHRAF(THUNDIYIL), S/O. ABDULLA, AGED 40 YEARS, PUHTHENPURAYIL HOUSE, P.O. VAIKKILASSERRY, (VIA) VATAKARA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN J. ----------------------------- CRL.R.P No.1154 of 2009 ------------------------------ Dated this the 26th day of November, 2009. O R D E R The revision petitioner is the complainant, a Private Limited Company, in S.T.No.147 of 2008 on the file of the Judicial Magistrate of the First Class II, Vatakara. It has been prosecuting the first respondent for offence under Section 138 of the Negotiable Instruments Act. It is submitted that the power of attorney holder has already been examined as PW1. The revision petitioner filed Crl.M.P.No.49 of 2009 seeking an order to examine one of the Managing Director of the company as another witness. The learned Magistrate by the order impugned dismissed the petition. The order reads as follows: “The complainant is a company and power of attorney holder of the complainant is already examined. The prayer in this petition is to examine the complainant. The representative of the company who filed the complaint, who is said to have personal knowledge regarding the facts of the case is already examined. Therefore this petition is unwarranted and is hence dismissed. No costs.” 2. In a prosecution upon a complaint it is the privilege of the complainant to decide as to how many witnesses are to be examined and who shall be the witness/es. That privilege is part of the right to fair trial, fairness and equity. The lower court ought to have borne in mind that it is the burden of the complainant to prove the prosecution case. In CRL.R.P No.1154 of 2009 2 discharge of that burden, if the complainant seeks to examine a second witness, there is no reason to doubt the bonafides. Unless it is revealed that the request for examining another witness is an abuse of the process, there is no justification for declining that right. In the impugned order it is not at all mentioned that the request for examining a second witness is in any way an abuse of the process. In this view of the matter the impugned order is not at all justified. It would amount to denial of right to fair trial, fairness, equity and suppression of evidence. The ultimate result is miscarriage of justice. The impugned order is not sustainable. It requires rectification in exercise of the revisional powers. In the result, this revision petition is allowed. The order under challenge is set aside. Crl.M.P.No.49 of 2009 before the lower court shall stand allowed. Sd/- P.S.GOPINATHAN JUDGE //True Copy// PA to Judge ab CRL.R.P No.1154 of 2009 3