IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 25009 of 2008(B) -------------------------- CC.275/2006 of J.M.F.C.-II, KOCHI .................... PETITIONER: ------------ S. RAGHUNATH, S/O. SWAMINATHAN, AGED 47, H. NO. 25/2118, AJANTHA ROAD, KOCHI-2. BY ADV. SRI.G.KRISHNAKUMAR RESPONDENTS: ------------- NAVAS.M, CC 1/694, KALATHIL PRAMBU, FORT KOCHI, KOCHI-1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 PHOTOCOPY OF THE COMPLAINT IN C.C. 275/06 ON THE FILE OF JFCM COURT-II, KOCHI. EXT.P2 PHOTOCOPY OF WRITTEN STATEMENT IN C.C.275/06 BY THE PETITIONER. EXT.P3 PHOTOCOPY OF THE LIST OF DOCUMENTS FILED ON 6.8.08. EXT.P4 PHOTOCOPY OF THE LIST OF WITNESSES FILED ON 6.8.2008 BY THE PETITIONER. EXT.P5 PHOTOCOPY OF THE PETITION TO SUMMON THE DOCUMENTS, PHOTOCOPY OF LIST OF WITNESSES FILED ON 6.8.08 IN CC 275/06. EXT.P6 PHOTOCOPY OF MP 1982/08 IN CC 275/06. EXT.P7 TRUE COPY OF MP 1982/08 IN CC 275/06. /TRUE COPY/ R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 25009 of 2008 B - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of August, 2008 JUDGMENT The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. The matter has reached the stage of defence evidence. When the matter came up on 6.8.2008, according to the learned Magistrate, there was no representation and under the impression that there was no defence evidence, the case was posted to 13.8.2008. On 13.8.2008 when the matter came up for hearing, counsel for the petitioner wanted defence evidence to be adduced. Application was filed under Section 315 Cr.P.C. to examine the accused, but no application for re-opening the defence evidence, which was recorded to be closed, was filed. The learned Magistrate insisted on such an application and on 14.8.2008 such application was filed. The same was allowed on condition that cost of Rs.300/- be paid. It is at this stage that the petitioner has come to this Court complaining about the improper procedure adopted by the learned Magistrate. W.P.C.No. 25009 of 2008 2 2. Report of the learned Magistrate was called for. In a dignified response to the allegations raised, the learned Magistrate accepts that on 6.8.2008 he had omitted to ascertain from the accused as to whether any defence evidence had to be adduced. There was no representation for the petitioner and under the impression that the accused had no defence evidence, he had noted that there is no defence evidence. The learned Magistrate submits that over crowding of work and absence of any representation created an unnecessary impression that the accused is not interested in adducing evidence. He further submits that the matter is posted to 2.9.2008 for defence evidence. 3. Having considered all the relevant circumstances, I am satisfied that the interests of justice will be served eminently by directing the learned Magistrate to permit the accused to adduce defence evidence without insisting on any cost as ordered on 14.8.2008. Such a direction, I am satisfied, shall serve the ends of justice eminently. I am satisfied that no further action is necessary in the light of the report submitted by the Magistrate. The learned Magistrate can be directed to proceed with the case on 2.9.2008 and W.P.C.No. 25009 of 2008 3 permit the accused to adduce defence evidence without insisting on any payment of cost. 4. This writ petition is allowed in part to the above extent. (R. BASANT) Judge tm