IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 Crl.MC.No. 2849 of 2011() ------------------------- ST.2116/2010 of JUDL. FIRST CLASS MAGISTRATE COURT, KOLENCHERRY .................... PETITIONER. ----------- M/S.MUTHOOT VEHICLES & ASSETS FINANCE LTD, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER BABY SUJATHA, AGED 34 YEARS, D/O.VALSAN, LEGAL OFFICER, MUTHOOT VEHICLES & ASSETS FINANCE LTD,MARKET ROAD, ERNAKULAM. BY ADVS. DR.ABRAHAM P.MEACHINKARA SRI.JOY C. PAUL RESPONDENTS: ------------ 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. ABHILASH P.C, (ACCUSED) PANICKASSERI HOUSE, KONAM, PALLURUTHY, KOCHI-6. R1 BY PUBLIC PROSECUTOR SRI.RENJITH T.R. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JJJ Crl.MC.No. 2849 of 2011() APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-I TRUE COPY OF THE COMPLAINT FILED BEFORE THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM, DATED 30/07/2009. ANNEXURE-II TRUE COPY OF PROOF AFFIDAVIT MISTAKENLY FILED BEFORE THE FIRST CLASS MAGISTRATE COURT, KOLENCHERY DATED 01/4/2011. ANNEXURE-III TRUE COPY OF THE PROOF OF AFFIDAVIT IN S.T. NO: 2116/2011 BEFORE THE FIRST CLASS MAGISTRATE COURT, KOLENCHERY DATED 11/8/2011. ANNEXURE-IV TRUE COPY OF THE PETITION FILED U/S.311 OF CR.P.C. BEFORE THE FIRST CLASS MAGISTRATE COURT, KOLENCHERY . RESPONDANTS'S ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------ Crl.M.C. No. 2849 of 2011 ------------------------------------------ Dated this the 10th day of October, 2011. O R D E R The complainant in a case filed under Section 138 of the Negotiable Instruments Act is the petitioner. The case against the accused/second respondent is pending before the JFCM, Kolenchery as S.T. No.2116/2010. The petitioner/complainant contends that while filing affidavit in lieu of chief examination, the facts of another case happened to be mistakenly narrated. The learned counsel submits that this complainant is having so many cases instituted under Section 138 of the N.I. Act. It was only later that the counsel realised the mistake that the facts which were to be stated in another case happened to be stated in the affidavit filed in ST No. 2116/2010. It is submitted that the learned counsel himself filed the statement narrating the circumstances under which the mistake happened to be committed. In such circumstances Crl.M.C. No. 2849 of 2011 2 it cannot be said that the complainant should not be allowed to file a fresh affidavit in tune with the case set-up by him in the complaint. The accused/second respondent did not entered appearance before this court. There is other reason to hold that it is purely a mistake committed by the learned counsel appearing for the complainant. To meet the needs of the justice, it is just and proper that the mistake is allowed to be rectified by filing a fresh affidavit. The petition is allowed. The Annexure - 2 affidavit filed earlier shall be allowed to be replaced by Annexure - 3 affidavit. Needless to say that the accused/second respondent should be given an opportunity to cross-examine the complainant with regard to the same. The petition is disposed as above. N.K. BALAKRISHNAN, JUDGE smvd