IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.MC.No. 1283 of 2011() ---------------------------------- ST. NO.1612/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, PATHANAMTHITTA. ......... PETITIONER(S): COMPLAINANT ----------------------------------------------- E.N.THANKAMMA, AJEESH BHAVAN, KONNAMKARA P.O., RANNY, PERUNADU-689 711. BY ADV. SRI. K.SHAJ RESPONDENT(S): STATE AND ACCUSED ---------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682 031. 2. DEEPA SAJI, W/O.SAJI MINNARAM HOUSE, MANIYAR P.O., THOLICODE PUNALUR. 691 326. R1 BY PUBLIC PROSECUTOR SRI.K.J.MOHAMED ANZAR R2 BY ADV. SRI.LAL K.JOSEPH THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 1283 of 2011 ==================================== Dated this the 03rd day of June, 2011 O R D E R Petitioner is the complainant in S.T. No.1612 of 2009 of the court of learned Judicial First Class Magistrate-II, Pathanamthitta for offence punishable under Section 138 of the Negotiable Instruments Act. Her evidence was over, questioning of the second respondent under Section 313 of the Code of Criminal Procedure was over and defence evidence also was let in by the second respondent. At that stage petitioner came with Crl.M.P. No.2402 of 2011 to permit her to adduce evidence regarding her source of money. That application was opposed by the second respondent and learned Magistrate by Annexure-A2, order dated April 06, 2011 dismissed the application. Learned Magistrate observed that petition is highly belated, sufficient opportunity was given to the petitioner to adduce evidence and that petitioner came at the stage of final hearing. According to the learned Magistrate petition is intended to drag the proceeding. Learned counsel for petitioner requested that petitioner may be given CRL.M.C. No.1283 of 2011 -: 2 :- opportunity to adduce further evidence and that the impugned order virtually shuts out an opportunity to the petitioner to adduce evidence. Learned counsel for second respondent contended that though the cheque is allegedly issued for `8,00,000/-, petitioner in her evidence admitted that her daily income is only `50/-. It is pointed out by learned counsel that neither in the notice nor in the complaint there is any mention that funds were raised through the witnesses now sought to be examined and that attempt of petitioner is to fill up the lacuna or plug the loopholes in her case as to her capacity to raise funds. Learned counsel submitted that if there was any bona fides on the part of petitioner, witnesses sought to be examined should have been cited as witnesses in the list of schedule filed by petitioner. Even in her evidence there is no mention of raising of money through the witnesses now sought to be examined. In these circumstances it is contended that learned Magistrate is justified in disallowing the request of petitioner. 2. What is 'lacuna' in prosecution case is explained in Suja P.Chacko v. State of Kerala (1994 [1] KLT 148), Raghunathan v. State of Kerala (1995 [1] KLT SN Case No.33 Page 25) and Rajendra Prasad v. Narcotic Cell CRL.M.C. No.1283 of 2011 -: 3 :- (1999 [2] KLT 779 [SC]). It is held that it is the inherent wedge or latent defect in the prosecution matrix. It is also held that a mere fall out of an error on the part of prosecution is not 'lacuna'. The Supreme Court in Iddar v. Aabida (AIR 2007 SC 3029) has gone a step further and held that even if attempt of prosecution is to fill up or plug loopholes examination of witnesses is permissible and that what exactly is the probative value of the evidence is a matter which the court has to decide later. 3. Prima facie I am not inclined to think that attempt of petitioner is to fill up any “lacuna”. Of course it is within the competence of second respondent to contend that absence of mention of names of witnesses now sought to be examined in the complaint or even the evidence of petitioner as P.W.1 affects the probative value of the evidence the witnesses may give. Even otherwise what exactly is the probative value of the evidence that the witnesses may give is a matter which the trial court has to decide having regard to various aspects of the case. Having regard to the circumstances of the case I am inclined to think that petitioner must be given an opportunity to adduce evidence. Denial of opportunity to adduce evidence is one thing and the probative value of evidence let in by petitioner is a different CRL.M.C. No.1283 of 2011 -: 4 :- thing. Now I am concerned only with the question whether there should be a denial of opportunity to the petitioner. I am inclined to answer that there shall not be any denial. Hence I am inclined to give an opportunity to the petitioner. Resultantly this Criminal Miscellaneous Case is allowed. Annexure-A2, order dated 06.04.2011 on Crl.M.P. No.2402 of 2011 of the court of learned Judicial First Class Magistrate-II, Pathanamthitta is set aside and that application will stand allowed. I make it clear that permission granted hereby is only to examine the witnesses requested to be examined in Crl.M.P. No.2402 of 2011 and this will not enable petitioner to go on filing petitions endlessly to examine any witness as she desired. I also make it clear that I have not expressed any opinion as to the merit of the contentions raised by parties or the probative value of evidence including that of the witnesses sought to be examined as per this order which is a matter which the trial court has to consider having regard to all aspects of the matter. THOMAS P. JOSEPH, JUDGE. vsv