IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 Crl.MC.No. 3649 of 2011(A) -------------------------- PETITIONER(S): --------------- S.RADHAKRISHNAN NAIR, S/O.SRI.GOVINDA PILLAI, T.C. 17-1709,POOJAPPURA,TRIVANDRUM-1 (FORMER CHIEF MANAGER SBT,BEACH ROAD,KOLLAM) BY ADVS. SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.ANEESH JAMES SRI.P.PRIJITH RESPONDENT(S): --------------- CENTRAL BUREAU OF INVESTIGATION, KOCHI REP.BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. THIS CRIMINAL MISC. CASE HAVING COMING-UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. No.3649 of 2011 APPENDIX PETITIONER(S) ANNEXURES: ANNEXURE 1 TRUE COPY OF CRL.M.P NO.1153 OF 2011 ANNEXURE 11 TRUE COPY OF WITNESS LIST DATED 16-09-2011 ANNEXURE 111CERTIFIED COPY OF THE ORDER DATED 22-09-2011 IN CRL.M.P NO.1153/2011 RESPONDENTS' ANEXURES : NIL //TRUE COPY// P.A. TO JUDGE smvd N.K.BALAKRISHNAN, J ----------------------------------------- Crl.M.C. No.3649 of 2011 ------------------------------------------ Dated this the 16th day of November, 2011. ORDER Petitioner is the first accused in CC. 5/2002 of Special Judge (SPE/CBI) Ernakulam. The charge sheet in that case was filed against the petitioner and 7 other accused alleging offences punishable under Sections 120B and 420 IPC and also under Section 13(1)(d) r/w Section 13(2) of PC Act - 1988. It is alleged that the petitioner herein who was the Chief Manager of SBT, Beach road branch, Kollam entered into criminal conspiracy with other accused to obtain pecuniary advantage to A2 by corrupt or illegal means by abusing his offical position and by presenting and discounting false inland bills of M/s. Solar Cashew of A2 to cheat the SBT, beach road brach, Kollam and by committing such acts caused wrongful loss to the bank to the tune of several lakhs. There are other allegations of such creation of false bills and causing wrongful loss etc. After the prosecution evidence was over, the petitioner filed a list of 7 witnesses to be examined on the side of the defence. Objection was raised by the prosecution. The learned trial Judge as per Annexure – 3 order allowed witness Nos. 1 to 5 to be summoned. As regards witness Nos. 6 and 7, it was observed by the learned Judge that the points to be proved by witness Nos. 6 and 7 in the list were already proved by the witnesses examined on the side of the prosecution. Though these witnesses were cited by the prosecution, they were given-up by the prosecution since there was nothing more to be added by examining these witnesses. The learned standing counsel for CBI would submit that the learned prosecutor before the court below chose to give-up those two witnesses since they showed slight disinclination to support the prosecution. Whatever that be, since the points to be proved were already covered by the evidence let in by other witnesses examined in this case, learned trial Judge exercised the discretion properly, the learned standing counsel submits. It is further submitted that it was solely made for the purpose of vexation or delay or to defeat the ends of justice as has been mentioned in Sec.243(2) of the Code. 2. The learned senior counsel for the petitioner submits that the court cannot shut-out the evidence which the defence wanted to adduce. According to the learned senior counsel, one of these witnesses has to speak with regard to the procedure which was followed in the discounting of bills etc. The learned standing counsel for CBI would submit that the evidence regarding that aspect also has been adduced by the prosecution witness. It is also submitted that the witnesses have already deposed that bill discounting procedure was followed. The learned senior counsel submits that the witnesess are to come from Trivandrum and no delay will be caused in the examination of witnesess, 6 and 7. It is also submitted that these witnesess are to be examined not to contradict the prosecution witness. As such in order to avoid the plea of denial of opportunity/fair trial, it is just and proper that the request to examine the witnesses Nos.6 and 7 is also allowed. The learned special Judge will issue summons to CW-6 and CW-7 also. But it is made clear that their examination shall not be to contradict the witnesess examined on the side of the prosecution. Similarly, the defence cannot make use of the CD statements of those witnesses (witnesses 6 and 7) either to corroborate or to contradict those witnesses. N.K. BALAKRISHNAN, JUDGE smvd