IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.MC.No. 3608 of 2008() ------------------------- ST.2074/2004 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER(S): ACCUSEED ----------------------- SURESH.E.M.@ PATHROSE, AGED ABOUT 46 YRS S/O.CHACKO, ELAMPALLYPARAMBIL, AMAYANNOOR KARA, AYARKUNNAM.P.O.(WITHIN THE LIMITS OF MANARCAD POLICE STATION) BY ADV. SRI.P.K.SHAJU RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.N.RAMACHANDRAN, AGED 36 YEARS, S/O.NARAYANAN, KOLLAPALLIL HOUSE, LYMCOMBU KARA, KADANADU.PO. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3608 of 2008 ------------------------------------- Dated this the 25th day of September, 2008 ORDER Petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. Trial has commenced. It has reached the stage of defence evidence. The petitioner wanted a defence witness to be examined. He was examined; not by the senior counsel appearing for the petitioner, but by another. The petitioner, it is submitted, wanted that witness to be recalled. That was allowed on condition that an amount of Rs.750/- is paid as cost by 03.07.08. The amount was not paid. Later the case stood posted to 04.07.08, 14.08.08 and 20.09.08. On those dates, there was either no sitting of the court or the accused was not present. But as payment was not made on 20.09.08, the learned Magistrate dismissed the application to recall that defence witness. The case is posted to 27.09.08. 2. The learned counsel for the petitioner submits that the omission to pay the cost was not intentional at all. Crl.M.C. No.3608 of 2008 2 It was hoped that the cost should be paid to the counsel on 04.07.08. On 04.07.08 and 14.08.08, there were no sittings. Though it was expected that the payment could be made on 20.09.08, on that day the accused was absent and he could not appear. That is why the cost could not be paid. The petitioner badly wants to examine that defence witness. On any appropriate conditions, the petitioner may be granted an opportunity to cross examine that witness. The petitioner shall produce that witness, it is submitted. 3. I have heard the learned counsel for the petitioner in detail. Though the explanation offered for not making payment of cost of Rs.750/- to the complainant so far is not convincing, I am satisfied, in the facts and circumstances of the case, that the petitioner can be granted an opportunity to examine that defence witness. 4. Considering the nature of the relief that I propose to grant, I am satisfied, that it is not necessary for me to wait for issue and return of notice to the respondent/complainant. Crl.M.C. No.3608 of 2008 3 5. In the result: i) This Crl.M.C is allowed; ii) The petitioner shall appear before the learned Magistrate on 27.09.08 along with a copy of this order; iii) He shall pay to the complainant/complainant's counsel an amount of Rs.1,250/- (Rupees One thousand two hundred fifty only) as cost. He shall ensure that he appears before the learned Magistrate along with the defence witness, whom he wants to be examine on 27.09.07; iv) The learned Magistrate shall grant the petitioner an opportunity to examine such witness on 27.09.08; v) The proceedings shall be completed as expeditiously thereafter as possible. 6. Hand over a copy of this order to the learned counsel for the petitioner forthwith for production before the learned Magistrate. (R.BASANT, JUDGE) rtr/-