IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 705 of 2009() ----------------------------- AGAINST THE ORDER DATED 10/02/2009 IN CMP 31/2009. IN ST.2314/2007 of JUDICIAL FIRST CLASS MAGISTRATE -V. KOTTAYAM .................... REVN. PETITIONER(S): COMPLAINANT -------------------------------- REJIMOL THOMAS,D/O.THOMAS,AMAL GARDENS, PARAMALAYIL, ATHIRAMPUZHA, KOTTAYAM. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): ACCUSED & STATE ------------------------------ 1. SAJAN CHAKKIATH,SOLE PROPRIETOR,SHAROES, 19/103,ALUVAL ROAD, ANGAMALY(CHAKKIATH HOUSE, ELAVOOR, ANGAMALY). 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.705 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Respondent No.1 though served remained absent. I heard counsel for petitioner and the Public Prosecutor who took notice for respondent No.2. 2. Petitioner filed a private complaint against respondent No.1 alleging offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). On 8.1.2009 the case was posted for cross-examination of the petitioner. That day, her counsel being laid up due to chickenpox could not appear in court. Though an oral request for adjournment was made through another advocate who was not attached to the office of advocate of the petitioner, that request was rejected. Petitioner was cross-examined by counsel for respondent No.1. Though counsel who was present in court requested time for re-examination that request was also not entertained. Petitioner filed application under Section 311 of Code of Criminal Procedure (for short, “the Code”) requesting that petitioner (PW1) may be recalled and be allowed to be re-examined to clarify certain aspects. That application was opposed by respondent No.1. Learned magistrate as per the impugned order dismissed the application observing that there was no application for adjournment of the case on the day of cross-examination of the petitioner and that at any rate, the Crl.R.P.No.705/2009 2 application if allowed would amount to filling up the lacuna and thus be outside the scope of re-examination. Learned counsel for petitioner submits that there was no willful failure or default on the part of counsel in appearing on the day when petitioner was cross-examined and for clarification of certain matters it is necessary to conduct re-examination of the petitioner which cannot amount to filling up of lacuna. 3. It is true that there was no written request for adjournment of the case on the day when the petitioner was cross-examined but the fact that on behalf of counsel for petitioner an oral request was made is not disputed. I do not find reason to think that counsel for petitioner willfully didl not appear in court. 4. On the question whether re-examination would amount to giving an opportunity to fill up lacuna in the case, it is apposite to refer to the decision of the Apex Court in Rajendra Prasad v. Narcotic Cell (1999 (2) KLT 779). There it is stated that 'lacuna' is the inherent weakness of the case and cannot be equated with fall out or oversight. Apex Court observed that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. I am not inclined to think that attempt of the petitioner is to fill up lacuna as observed by the learned magistrate. At any rate, even if any new fact is permitted to be brought out in re-examination, it is open to respondent No.1 to request him to further cross-examine the witness. For the reasons stated above, impugned order is liable to be set aside and I do so. Crl.R.P.No.705/2009 3 Resultantly, this revision petition is allowed. Order under challenge is set aside. C.M.P.No.31/2009 will stand allowed. Crl.M.A.No.2092 of 2009 will stand dismissed THOMAS P.JOSEPH, Judge. cks