IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 Crl.Rev.Pet.No. 1447 of 2008() ------------------------------ ST.2798/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... REVN. PETITIONER: PETITIONER/ACCUSED/REVN.PETITIONER ---------------------------------------------------- P.N.SREEDEVI, AGED 37 YEARS, D/O. PESSOMBILLY RAMAN NARAYANAN ELAYATH, RESIDING AT PESSOMPILLY ILLOM, MURINGORE THEKKEMURY VILLAGE, KORATTY. BY ADV. SRI.M.K.DILEEPAN SRI.DEEPAK T.NEDUNGADAN RESPONDENTS: COMPLAINANT & STATE -------------------------------- 1. JAYARAJ, AGED ABOUT 41 YEARS, S/O. RAMAKRISHNAN, KARAKKATTUPARAMBIL HOUSE, CHALAKKUDY VILLAGE, CHALAKKUDY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. RAVINDRABABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. NO. 1447 of 2008 * * * * * * * * * * * * * * * * * * Dated: 27-05-2008 ORDER Petitioner a lady is the accused in a prosecution under Sec. 138 of the Negotiable Instruments Act, ( 'the Act” for short). She was initially convicted by the trial court and the conviction was confirmed by the Sessions Court on appeal. In Crl.R.P. 913 of 2000 filed by her before this Court, her only grievance was that two of her witnesses were not permitted to be examined to substantiate her defence. As per order dated 2-1-2008 this Court granted her an opportunity to examine the two witnesses. The conviction was therefore set aside and the matter was remanded to the trial court with a direction to dispose of the same afresh after receipt of a copy of the judgment. The judgment was received by the trial court on 3-2-2008. Thereafter the petitioner examined one out of the two witnesses. The other witness is stated to have died in a motor accident. Thereupon, the petitioner filed Crl.M.P. No. 4821 of 2008 before the trial court under Sec. 315 Cr.P.C. seeking to examine herself as a defence witness. That has been dismissed by the trial court as per the impugned order dated 17-4-2008. 2. Technically, the learned Magistrate is right in holding that the petitioner who had no case even before this Court on the earlier -:2:- occasion that she wanted herself to be examined as a witness could not be permitted to examine herself as a defence witness. But out of the two defence witness one subsequently died and she was therefore precluded from examining that witness. At any rate, in the fitness of things, the request by the accused to volunteer her examination as a defence witness by seeking permission under Sec. 315 Cr.P.C. should not have been refused by the trial court since in a prosecution under Sec. 138 of the Act when once the complainant has discharged the initial burden it is for the accused to rebut the presumption operating against him or her under Sec. 118 and Sec. 139 of the Act. Accordingly, the impugned order is set aside and the petitioner is permitted to examine herself as a defence witness. Eventhough the first respondent/complainant has been served through his counsel has not to chosen to enter appearance in this revision. By giving the accused/revision petitioner an opportunity to examine herself as a defence witness, no valuable right of the complainant can be said to have been breached . This Revision Petition is accordingly allowed as above. The petitioner shall appear before the court below on the next hearing date and offer herself for examination as defence witness without any further delay. V. RAMKUMAR, (JUDGE) -:3:- ani.