IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE B.P.RAY WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 Crl.MC.No. 1401 of 2011() ------------------------- CRA.369/2010 of DISTRICT & SESSIONS COURT, ERNAKULAM. S.T NO. 1859/2007 of JUDICIAL FIRST CLASS MAGISTRATE-I, KOCHI .................... PETITIONER/APPELLANT/ACCUSED:- ----------------------------------------- K.YESODHA, AGED 48 YEARS, W/O.LATE GOVINDAN, BINDU NILAYAM, DHARMADAIVAM, THARAVAD (NR), BEACH ROAD, KASARAGOD DISTRICT. BY ADV. SRI.K.P.HARISH SMT.M.SHAZIA SULTHANA RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------------------------- 1. RAJU THOMAS, S/O.THOMAS, AGED 33 YEARS, CHITTEZHATH HOUSE, NJARACKAL P.O., ERNAKULAM DISTRICT. 2. STATE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.T.H.ABDUL AZEEZ FOR R1 ADV. SRI. B. VINOD, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.NO. 1401/2011 ORDER ON CRL.M.A.NO. 2842/2011 IN CRL.M.C.NO. 1401/2011 DISMISSED 13.07.2011 sd/- B.P. RAY, JUDGE. APPENDIX PETITIONER'S ANNEXURES: ANNEXURE AI : TRUE COPY OF THE JUDGMENT DATED 05.06.2010 IN ST. 1859/2007 OF JUDICIAL FIRST CLASS MAGISTRATE-I, KOCHI. ANNEXURE AII : TRUE COPY OF THE AFFIDAVIT AND PETITIONS IN CRL.M.P. NO. 442/11 IN CRL.APPEAL NO.369/2010 OF THE ADDL. SESSIONS JUDGE (AD HOC-II), ERNAKULAM. ANNEXURE AII(a) : TRUE COPY OF THE PETITION IN CRL.M.P. NO. 443/11 IN CRL. APPEAL NO. 369/2010 OF ADDL. SESSIONS JUDGE (AD HOC-II), ERNAKULAM. ANNEXURE AII(b) : TRUE COPY OF THE PETITION IN CRL.M.P. NO. 444/11 IN CRL.APPEAL NO. 369/2010 OF THE ADDL. SESSIONS JUDGE (AD HOC-II), ERNAKULAM. ANNEXURE AII(c) : TRUE COPY OF THE PETITION IN CRL.M.P. NO. 943/11 IN CRL. APPEAL NO. 369/2010 OF THE ADDL. SESSIONS JUDGE (AD HOC-II), ERNAKULAM. ANNEXURE AIII : TRUE COPY OF THE COMMON ORDER IN CRL.M.P. NOS. 442/11, 443/11, 444/11 AND 943/11 IN CRL.APPEAL NO. 369/2010 OF THE ADDL. SESSIONS JUDGE (AD HOC-II), ERNAKULAM. RESPONDENTS' ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE rv B.P. RAY, J. - - - - - - - - - - - - - - - - - Crl.M.C. No. 1401 of 2011 - - - - - - - - - - - - - - - - Dated this the 13th day of July, 2011. O R D E R Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the de facto complainant. 2. The appellant has been convicted under Section 138 of the Negotiable Instruments Act, 1881 and has been sentenced to undergo simple imprisonment for six months and to pay a fine of ` 2,00,000/- and in default to pay the fine, to undergo simple imprisonment for three months. The petitioner has filed an appeal before the learned Addl. Sessions Judge (Adhoc-II), Ernakulam as Crl. Appeal No. 369 of 2010 and preferred petitions under Sections 391 and 315 in the appeal to examine herself as a defence witness. I perused impugned order dated 20.04.2011 passed in the petitions in the aforementioned Crl. Appeal. The only ground urged is to examine herself as defence witness No.1. It is the settled principle of law that the accused must be given an ample opportunity to defend and contest his case. The petitioner has given a statement under Section 313 Crl. M.C. No. 1401/2011 -:2:- Cr.P.C through her counsel. Therefore, in the fitness of things, she should be given an opportunity to adduce defence evidence by examining herself. Therefore, I allow the application under Section 391 Cr.P.C filed before the learned appellate court and permit the petitioner to adduce evidence under Section 315 Cr.P.C by examining herself as DW1. This may cause prejudice to the complainant. To mitigate the grievance of the complainant/respondent No.1, I direct that the examination of the accused as DW1 shall be subject to payment of `1000/- (Rupees one thousand only) as cost to the complainant before the Appellate court within one month from today. This Crl.M.C. is allowed. sd/- B.P. RAY, JUDGE. rv