IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.MC.No. 3526 of 2009() ------------------------------------ CC.358/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONER/ACCUSED --------------------------------- KING FISHERIES LTD REGISTERED OFFICE BLDG.NO.C-10-1052 (5) CANTONMENT WARD, QUILON, REPRESENTED BY ITS MANAGING DIRECTOR, MATHEW B JOHN. BY ADV. MR.ASHIK K.MOHAMMED ALI RESPONDENTS/STATE & COMPLAINANT: ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. MUTHOOT CAPITAL SERVICES LTD MUTHOOT TOWERS, M.G.ROAD, KOCHI- 682 035, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER ,SRI.R.S.IYER MANAGER (SECRETARIAL & ADMINISTRATION). R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3526 OF 2009 ------------------------------------------ Dated 3rd November 2009 O R D E R Petitioner is the accused and second respondent the complainant in C.C.358/1998 on the file of Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. Case of the petitioner is that at the stage of defence evidence, he had taken steps to summon a witness and though summons was issued on 14/7/2009 and the case was posted for examination of the defence witness to 19/8/2009. On that day evidence was closed as witness was not present though summons was not in fact issued and petitioner therefore filed petition under Section 311 of Code of Criminal Procedure to examine that witness. Learned Magistrate allowed that petition and ordered summons to the witness. The case was posted to 13/10/2009 awaiting summons and it was thereafter posted to 29/10/2009. On that day the case was posted for argument, closing the evidence. It was alleged that the learned Magistrate did not even ascertain Crmc 3526/09 2 whether summons was served on the witness, as summons was sent from court only on 1/10/2009. 2. Learned counsel appearing for the petitioner submitted that summons though issued on 30/9/2009 was sent from the court only on 1/10/2009 and before serving summons, learned Magistrate should not have closed the evidence denying opportunity to examine the witness. 3. There is substance in the submission of the learned counsel as evidence was closed earlier before examination of the witness for no fault of the petitioner, it persuaded the learned Magistrate to invoke the power under Section 311 of Code of Criminal Procedure at a later stage. Permission was granted to the petitioner to examine the witness. 4. Petition is disposed as follows. If the order dated 29/10/2009 was passed, without service of summons on the witness, learned Magistrate is to issue fresh summons to the witness and examine the witness before hearing the arguments. M.SASIDHARAN NAMBIAR, JUDGE. uj.