IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.MC.No. 2704 of 2008() ------------------------- CRMP.4312/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER: PETITIONER/ACCUSED ------------------------------ A.C.VARGHESE, AYYAMPLACKAL VEEDU, VALLICODE, KOZHENCHERRY, PATHANAMTHITTA. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT/ COMPLAINANT AND STATE ----------------------------------------------- 1. VENU.T., S/O.THEVAN, PAVITHRAM VEEDU, PALLICKAL MURI, PALLICKAL, ADOOR. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.2704 of 2008 ---------------------------------------- Dated this the 22nd day of July 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. Cognizance was taken as early as in 2005. At long last, the case reached the stage of 313 examination. The accused was examined on 18/1/2008 and the matter was posted for defence evidence to 01/02/2008. No defence evidence was adduced on 01/02/2008. The case was posted to 23/2/2008. On that day also no defence evidence was adduced and the case was posted to 14/3/2008. On 14/3/2008 no defence evidence was adduced. The case posted to 18/3/2008 and on 18/3/2008 no defence evidence was adduced; but the court directed that the defence schedule be filed by the next date. The case was posted to 26/4/2008. On that day the defence schedule was filed. The case was posted to 13/6/2008. On 13/6/2008 the case was posted to 26/6/2008 with the direction to produce defence witnesses. On 26/6/2008 no defence witness was produced and hence the defence evidence was closed and the case was posted to 01/07/2008. On 01/07/2008 C.M.P.No.4312/2008 was filed and the same was Crl.M.C.No.2704/08 2 dismissed by the learned Magistrate by the impugned order. The case was posted for hearing later to 11/7/2008 and 17/7/2008. It is at this stage that this petition under Section 482 Cr.P.C is filed on 16/7/2008. 2. The learned counsel for the petitioner submits that the petitioner is entitled for opportunity to adduce evidence. In a prosecution under Section 138 of the Negotiable Instruments Act this is particularly so as he has the burden on his shoulders to rebut the presumption under Section 139 of the Negotiable Instruments Act. There can be no quarrel with that proposition of law. Under Section 245(2) Cr.P.C it is trite and it has been repeated many times by this court that the mere fact that an accused files an application to summon a defence witness is no reason for the court to mechanically issue summons. Under Section 254 Cr.P.C the court need issue summons only “if the Magistrate thinks fit.” 3. The learned counsel for the petitioner was requested to explain what is the relevance of the evidence which is sought to be adduced. According to the petitioner he wants to summon a witness to prove the fact that EMI due on a car was still being paid by the complainant from his salary. Did the complainant specifically dispute this fact? What precisely is the evidence Crl.M.C.No.2704/08 3 adduced? I shall carefully avoid any detailed discussion on these aspects. But Suffice it to say that sufficient materials have not been placed before me to instill in me the satisfaction that the evidence which is proposed to be adduced is so vital and necessary for the case as to justify the invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. That is an extraordinary inherent jurisdiction available to the court. Sufficient and compelling reasons must be shown to exist to justify the invocation of such jurisdiction. Ordinarily and normally an interim order passed in the course of proceedings before a Magistrate is not amenable to challenge during the pendency of the proceedings. Section 397(2) proscribes challenge against interim orders in exercise of revisional jurisdiction. What is specifically prohibited under Section 397(2) Cr.P.C cannot lightly be achieved by resort to the powers under Section 482 Cr.P.C. Not that the petitioner has no right of challenge. He can challenge such interim orders only along with the final order if he finds such challenge to be necessary. This court still retains with it the powers to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C in a proper case where the conscience of the court is satisfied that failure and miscarriage of justice would otherwise result. Such Crl.M.C.No.2704/08 4 extraordinary jurisdiction shall not be invoked as a matter of course. I need only mention that at the moment and with the available inputs the necessary satisfaction is not instilled in my mind to justify invocation of the extraordinary inherent jurisdiction under Section 482 Cr.P.C. The learned counsel relies on precedents to show that the accused has a right to adduce defence evidence, more particularly in a prosecution under Section 138 of the Negotiable Instruments Act to rebut the presumption under Section 139 of the Negotiable Instruments Act. But even for that sufficient materials to instill satisfaction in the mind of the court must be made available to justify resort to such inherent powers. That is significantly lacking in this case. 4. This Crl.M.C is in these circumstances dismissed. But I may hasten to observe that the dismissal of this Crl.M.C will not in any way fetter the rights of the petitioner to challenge the impugned order, if found necessary along with the final order to be passed by the learned Magistrate disposing of the prosecution. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.2704/08 5 Crl.M.C.No.2704/08 6 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008