IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Crl.MC.No. 3303 of 2009() ------------------------- ST.340/2008 of JUDL.MAGISTRATE OF FIRST CLASS-I, THAMARASSERY .................... PETITIONER(S): COMPLAINANT: --------------------------- SRI.P.C.MUHAMMED, S/O.ABOOBACKER HAJI, PUZHANKARA HOUSE, KODUVALLY P.O., KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): STATE & ACCUSED: ------------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SRI.KANNAN, AGED 60 YEARS, S/O.KELAPPAN, KUZHICHALIL HOUSE, PANIYAMKADAVU, VATAKARA TALUK. R1 BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 3303 OF 2009 ------------------------------------------ Dated 14th October 2009 O R D E R Petitioner is the complainant in S.T.340/2008 on the file of Judicial First Class Magistrate-I, Thamarassery. Petitioner had filed an application to summon the Manager of the Bank which was allowed on 25/8/2009. Though petitioner was permitted to take steps, steps were not taken and finally by order dated 24/9/2009 evidence was closed and the case was posted for questioning under Section 313 of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-3 order and to permit petitioner to take out summons. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel submitted that though there was an omission earlier to take steps, petitioner was prepared to deposit batta on 24/9/2009 but without granting opportunity evidence was closed CRMC 2879/09 2 and the accused was subsequently questioned and the case now posted for defence evidence to 24/10/2009. 4. In such circumstances, Annexure-3 order cannot be interfered as the case now stands posted to defence evidence, after questioning the accused. Petitioner has to file a petition under Section 311 of Code of Criminal Procedure for permission to examine the witness showing sufficient reason. Learned counsel submitted that if such a petition is filed based on Annexure-3 order, permission will not be granted. 5. Learned Magistrate is directed not to reject the prayer to examine the witness if such a petition is filed for the sole reason that the petitioner had failed to pay the batta earlier. If for a just decision of the case the Magistrate finds that examination of the Branch Manager is necessary and petitioner files a petition under Section 311 of Code of Criminal Procedure, the Magistrate can permit the petitioner to examine the witness on terms. Petition is disposed. M.SASIDHARAN NAMBIAR, CRMC 2879/09 3 JUDGE. uj.