IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Crl.MC.No. 1851 of 2011() ------------------------------------ AGAINST THE ORDER DATED 09/05/2011 IN CRMP 1207/2011 IN ST.3408/2005 of JUDL.MAGISTRATE OF FIRST CLASS - I, PERUMBAVOOR .................... PETITIONER(S): RESPONDENT NO.1/ACCUSED NO.1 ------------------------------------------- N.P.RAJU, MANAGING DIRECTOR, M/S. PREMCO METAL INDUSTRIES PVT.LTD., PALAKATTU THAZHAM, MUDICKAL P.O., PERUMBAVOOR. BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.NOEL JOSEPH SRI.M.B.SANDEEP SRI.K.V.REJANISH RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY INSPECTOR OF LEGAL METROLOGY, PERUMBAVOOR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRMC. NO.1851/2011 APPENDIX PETITIONER'S ANNEXURES A1:- COPY OF THE COMPLAINT NO.ST.3408/2005 ON THE FILES OF JUDICILA FIRST CLASS MAGSITRATE COURT, PERUMBAVOOR. A2:- COPY OF THE CRL.MP.1207/2011. A3:- COPY OF THE OBJECTION FILED BY THE PETITIONER IN CRL.MP.1207/2011. TRUE COPY P.A. TO JUDGE tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1851 of 2011 -------------------------------------- Dated this the 21st day of June, 2011. ORDER Petitioner is first accused in S.T.No.3408 of 2005 of the court of learned Judicial First Class Magistrate-I, Perumbavoor for offences punishable under the Standards of Weights and Measures (Enforcement) Act. Prosecution examined six witnesses including PW1, the successor of complainant in office. Prosecution evidence was closed on 30.07.2010. That was followed by examination of petitioner under Section 313 of the Code of Criminal Procedure (for short, “the Code”). DWs 1 to 3 were examined and the case was heard in part. While so, on 07.04.2011 the Inspector of Legal Metrology, complainant in the case filed C.M.P.No.1207 of 2011 under Section 311 of the Code to reopen the case to examine the original complainant and recall PW1 for further examination. That application was allowed against objection of petitioner by order dated 09.05.2011 which is under challenge. Learned counsel submitted that it is without assigning any reason that complainant wanted the case to be reopened. It is also stated that the case was booked in the year 2004 and for the last more than seven years petitioner and other accused are being dragged into the court. Learned counsel submitted that 16 postings were given for examination of the complainant but, inspite of that no attempt was made to examine the complainant. I have heard learned Public Prosecutor also. Crl.MC No.1851/2011 2 2. It is pointed out that PW1 is the successor in the office of complainant who preferred the complaint. Contention of petitioner is that attempt of complainant is to fill up lacuna. What is called 'lacuna' is explained in Suja P. Chacko v. State of Kerala (1994(1) KLT 148) and Rajendra Prasad v. Narcotic Cell (1999 (2) KLT 779) as the inherent weakness or the latent wedge in the prosecution matrix. It is also held that a mere fall out of an error in the prosecution not examining a witness is not a 'lacuna'. In Iddar & Others v. Aabida & another (AIR 2007 SC 3029) the Supreme Court held that the question whether attempt is to plug loopholes is only subsidiary and that evidence could be brought on record. Learned Magistrate has referred to various contentions and found that the complainant has to be given an opportunity to adduce evidence. 3. Grievance of petitioner is that himself and other accused are being dragged to court for the last several years and the request to recall PW1 and examine the original complainant came after the case was heard in part. Having regard to the circumstances, recall of witnesses can only be on terms of cost. It is therefore, directed that petitioner and other accused shall be paid cost of `.500/- each as a condition for allowing C.M.P.No.1207 of 2011. The cost shall be paid on the day witnesses are sought to be examined. Crl.MC No.1851/2011 3 Resultantly this Criminal Miscellaneous Case is disposed of with the modification that as a condition for recall of the witnesses as prayed for in C.M.P.No.1207 of 2011 the complainant shall pay cost to the petitioner and other accused at the rate of `.500/- (Rupees Five hundred only) each and that the cost shall be paid on the day the witnesses summoned/recalled are sought to be examined. Learned Magistrate is directed to dispose of the case within two months from the date of receipt of a copy of this order. THOMAS P.JOSEPH, Judge. cks