IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 Crl.MC.No. 3877 of 2008() ------------------------- AGAINST THE ORDER DATED 18/09/2008 IN CMP 3643/2008 IN ST.136/1996 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... PETITIONER(S): COUNTER PETITIONER CRMP. --------------------------------------- MONI KUNCHERIA, S/O. M.T.KUNCHERIA, MADANAPPILLIL HOUSE, VAZHICHERRY, ALLEPPEY DT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN RESPONDENT(S): --------------- 1. ANNAMMA VARGHES,W/O.CHERIAN P.VARGHESE, POOPPALLY, ALLEPPEY DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2008, ALONG WITH CRMC NO. 3879 OF 2008 & CRMC NO.3888 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C Nos.3877, 3879 and 3888 of 2008 ------------------------------------- Dated this the 3rd day of November, 2008 ORDER Petitioner is the complainant in 3 prosecutions, all against same accused and under Section 138 of the Negotiable Instruments Act. Proceedings were initiated as early as in 1996, as can be seen from the number assigned to the 3 cases, ie. S.T.Nos.134 to 136 of 1996. The case has not been disposed of yet. The complainant was examined as a witness long back in 1997. Later, on two occasions, the accused had filed applications and the complainant was recalled for cross examination. In 2001 and 2007, the complainant had been cross examined. Earlier, when an application to recall the complainant was allowed by the learned Magistrate, the complainant had come to this Court and another Bench of this Court had set aside the order and directed the court below to pass a speaking and reasoned order. That application was allowed later and it was thus that the complainant was recalled in 2007. 2. Later the accused filed 3 applications as C.M.P Nos.3641 of to 3643 of 2008 praying that the complainant may be made available for cross examination once again. By identical Crl.M.C Nos.3877, 3879 and 3888 of 2008 2 orders passed by the learned Magistrate, those applications were allowed. The relevant portion of the order in C.M.P.No.3641 of 2008, which is followed in the other 2 cases reads as follows: “Heard both sides. This petition is under Section 311 Cr.P.C. to recall and examine the complainant. It is stated that complainant was examined thrice. However it is seen that there are three cases at present between the same parties and C.C.327 of 2008 is pending against the complainant and others herein before Judicial I Class Magistrate-I, Alappuzha, pertaining to the alleged transaction in question. In the interest of justice, this petition is allowed. No cost.” 3. The learned counsel for the petitioner/complainant submits that by the impugned decision of the court below has unnecessarily offered on a platter to the accused an undeserved further opportunity to recall and cross examine the complainant. This is not justified, submits the learned counsel for the petitioner. 4. To a specific question by this Court it is submitted that the complainant is very much present before the court below and is appearing before the court below to prosecute his complaints. I am of course not satisfied that the learned Magistrate had passed a reasoned and speaking order. But all the same, I take note of the fact that the complainant is present before court and he is readily available for cross examination. The accused wants Crl.M.C Nos.3877, 3879 and 3888 of 2008 3 certain further question to be put to the complainant. I am, in these circumstances, satisfied that there is absolutely no warrant for invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C to interfere with the impugned orders. Granting further opportunity to the complainant even assuming that it is not richly deserved by the accused, I am satisfied, does not call for intervention by this Court by invoking the jurisdiction under Section 482 Cr.P.C. The counsel contends that the accused is only interested in protracting the proceedings. I am satisfied, in these circumstances, that the further opportunity can be made available to the accused with the rider that the accused shall have to pay cost of Rs.1,500/- each in each of these 3 cases to the complainant to entitle him for the opportunity which has been indulgently granted to him by the learned Magistrate. 5. I note that these cases have been pending before the court below for a long period of time - from 1996. There shall be a specific direction that the learned Magistrate shall complete the proceedings as expeditiously as possible - at any rate, within a period of 45 days from the date of the next posting. Compliance shall be reported to this Court. Crl.M.C Nos.3877, 3879 and 3888 of 2008 4 6. In the result: i) These Crl.M.Cs are allowed in part; ii) It is specified that the respondent/accused shall be entitled to avail of the opportunity of further cross examination only on condition that he pays to the complainant an amount of Rs.1,500/- each as cost in these 3 cases. Such payment is to be made on or before the next date of posting. (R.BASANT, JUDGE) rtr/-