IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 Crl.MC.No. 353 of 2011() ------------------------ AGAINST THE ORDER DATED 02/12/2010 IN S.T.159/2009 IN CRMP.687/2010 of JUDL. MAGISTRATE OF FIRST CLASS-II, CHENGANACHERRY .................... PETITIONER(S): IST ACCUSED -------------------------- K.ANTONY, S/O.KUSUMOS, AGED 33 YEARS, KUTTEZHAM VEEDU, PATHIRAPPALLY, ALAPPUZHA. BY ADV. SRI.P.KRISHNA KUMAR (ALAPPUZHA) SRI.R.VIJAYACHANDRAN SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S): COMPLAINANT -------------------------- 1. K.N.SUKUMARAN NAIR, AGED ABOUT 60 YEARS, KAKKATTU VEEDU, PERUNNA WEST, CHANGANACHERRY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.S.JAYAKRISHNAN FOR R1 R2 BY P.P.SRI.K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ON 17/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ Crl.M.C. No.353 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 17th day of March 2011 O R D E R Petitioner is accused in S.T.No.159 of 2009 of Judicial First Class Magistrate-II Court, Changanacherry facing trial for offence punishable under Section 138 of the Negotiable Instrument Act (for short “the Act”). According to the 1st respondent/PW1, petitioner issued a cheque for the discharge of a legally enforceable debt/liability. Petitioner contends that he had no transaction with the first respondent and that the cheque was given to the Devaswom Trust as security for the loan availed from that Trust. First respondent examined himself and his witness as Pws.1 and 2, respectively. Pws.1 and 2 were cross examined by the counsel for petitioner. Later, petitioner filed C.M.P.No.687 of 2010 under Section 313 of the Code of Criminal Procedure (for short “the Code”) to recall Pws.1 and 2 for Crl.M.C. No.353 of 2011 -: 2 :- further cross examination. That request was disallowed by the learned Magistrate vide Annexure-4 order dated December 2, 2010 stating that the attempt of petitioner is to protract the proceeding. 2. I have heard learned counsel for petitioner and the first respondent. The learned counsel for petitioner submitted that petitioner's mother, who is a psychiatric patient was undergoing treatment and hence, petitioner could not be present the court and give proper instruction to his counsel for cross examination of Pws.1 and 2. Petitioner also was undergoing treatment. Petitioner has produced certain documents. Annexure-1 is the discharge card issued to the mother of petitioner from the Medical College Hospital, Alappuzha which shows that she was admitted in that hospital on 9.10.1992 and discharged on 15.10.1992. Annexure-2 is the discharge card issued to one Joshy (who, according to the petitioner is himself) showing his admission in the said hospital on 4.8.2010 and discharge Crl.M.C. No.353 of 2011 -: 3 :- on 14.8.2010 having undergone treatment for multiple stab injuries. 3. There is some reason to think that the non appearance of petitioner at the time Pws.1 and 2 were cross examined was not willful. True, as claimed by the first respondent, his evidence was closed on 15.10.2009 and the case was posted for examination of petitioner under Section 313 of the Code on 20.10.2009. But, having regard to the circumstances stated, I am inclined to think that petitioner has to be given an opportunity to further examine Pws.1 and 2, but it can only be on terms of cost which in the circumstances is fixed as Rs.500/- each payable to Pws.1 and 2. Resultantly, this petition is disposed of in the following lines :- Annexure-4 order dated December 2, 2010 in Crl.M.P.No.687 of 2010 in S.T.No.159 of 2009 of Judicial First Class Magistrate-II, Changanacherry will stand set Crl.M.C. No.353 of 2011 -: 4 :- aside and that petition allowed on condition that petitioner paid to the counsel for the first respondent in the court below Rs.1,000/- by way of cost for payment to Pws.1 and 2 in equal proportion within two weeks from this day and produced receipt from the counsel in the trial court within three days from the date of payment of cost. In case the counsel failed/refused to receive the cost, the same shall be deposited in the court below within two weeks from this day. On production of that receipt/deposit in court as the case may be, Crl.M.P.No.687 of 2010 will stand allowed and the learned Magistrate shall recall Pws.1 and 2 for cross examination. In case cost as aforesaid is not paid and receipt not produced and amount is not deposited in the trial court, this petition will stand dismissed in confirmation of Annexure-4 order. THOMAS P. JOSEPH, JUDGE. Jvt