IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.MC.No. 1191 of 2008() ------------------------- CC.293/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PALAKKAD .................... PETITIONER: REVN.PETITIONER/APPELLANT/ACCUSED --------------------------------------------- T.M.AZEEZ,S/O.MOIDEENKUTTY,THEKKINKADU HOUSE,THANNIKODE,MATHU P.O,PALAKKAD. BY ADV. SRI.U.MUHAMMED MUSTHAFA SRI.K.ABDUL JAWAD RESPONDENTS: ------------- 1. KARUNAKARAN,S/O.CHAMUNNI,POOKODE, KANNADI P.O,PALAKKAD 678 701. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. BY P.P. SRI. S.U. NAZAR. BY ADV. SRI.N.RAGHURAJ FOR R1 SRI.A.V.RAVI FOR R1 SMT.K.AMMINIKUTTY FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 1191 of 2008 ------------------------------------------------- Dated this the 22nd day of September, 2008 ORDER The petitioner is the complainant in a prosecution under Sec.138 of the Negotiable Instruments Act. He has filed a complaint in his capacity as the holder in due course of a cheque. When he was examined as P.W.1, there was a serious dispute about his status as holder in due course. The petitioner, in these circumstances, wanted to examine the payee in the cheque. That payee was not available in India, he having gone abroad in connection with his employment. The petitioner hence filed an application with a prayer that he may be permitted to examine the said payee as a witness. The payee was expected to be in India only during the latter half of September, 08 and therefore the application was filed to adjourn the case to a date in September when the payee was Crl.M.C. No. 1191 of 2008 -: 2 :- expected to be available in India. By the impugned order, that application has been dismissed. Against that order, the petitioner has preferred this Crl.M.C. This Crl.M.C. was admitted and an interim stay was granted in March, 2008. The case was adjourned from time to time and the interim stay was extended till 15/9/08. The matter has now come up for hearing at the instance of the learned counsel for the petitioner. The respondent/accused has already entered appearance. 2. The learned counsel for the petitioner submits that the payee is, at the moment, available in India and unless this petition is disposed of expeditiously, the payee will have to return to his place of employment abroad on 7/10/08 and if that happens, the petitioner will be deprived of his valuable right to adduce evidence. It is prayed that the impugned order may be set aside and the learned Magistrate may be directed to dispose of the case expeditiously after examining the payee. 3. Notice was given to the respondent/accused. The learned counsel has entered appearance on his behalf. No Crl.M.C. No. 1191 of 2008 -: 3 :- serious objection was raised against the prayer for examination of the payee. I am satisfied, in the facts and circumstances of this case, that the petitioner deserves to be granted an opportunity to examine the payee as a witness on his side. 4. In the result: (a) This Crl.M.C. is allowed. (b) The impugned order is set aside. (c) The learned Magistrate is directed to give the petitioner an opportunity to examine the payee. 5. The learned counsel for the petitioner submits that the court of the learned Judicial Magistrate of the First Class-II, Palakkad, before whom the case is pending is vacant and unless there is a specific direction to the Magistrate in charge to consider and proceed with the case, the case is unlikely to be taken up. I am satisfied that appropriate directions can be issued. 6. It is, in these circumstances, further directed that both the parties must appear before the Magistrate in charge on Crl.M.C. No. 1191 of 2008 -: 4 :- 29/9/2008. The payee shall be examined before court on that day. The Magistrate in charge must ensure that the petitioner is given an opportunity to examine the payee on 29/9/08 or on the immediate succeeding dates if his examination is for any reason impossible on 29/9/08. 7. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 1191 of 2008 -: 5 :-