IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 754 of 2007() ----------------------------- AGAINST THE ORDER IN CMP 4416/06 IN ST.1508/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER: --------------------- P.K.FAREEDA, D/O.IBRAHIM HAJI, PROPRIETRESS, AL-AQSA TRADERS, FAREEDA MANZIL, ORKATTERI, VATAKARA. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: --------------- 1. M.AHAMMED BASHA, S/O.ABDUL RAHIM, PARTNER, M/S.VEEYEMAR AND COMPANY, JAGGERRY AND RICE MERCHANTS AND COMMISSION AGENTS, 12/1059, BIG BAZAR, CALICUT-673 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.M.FIROZ FOR R1 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------- Crl.R.P.No.754 of 2007 -------------------------------- Dated this the 4th day of December, 2009 ORDER The revision petitioner is the first accused in S.T.No.1508 of 2003 pending on the file of the Judicial Magistrate of the First Class-I, Kozhikode. The first respondent herein is prosecuting the revision petitioner and her husband alleging offence under Section 138 of the Negotiable Instruments Act. During the pendency of the proceedings, husband of the revision petitioner happened to undergo treatment for some mental ailment. On finding that the husband of the revision petitioner is not fit to face trial, the case against him was split up and the revision petitioner was sent for trial. Once the evidence was closed and the statement of the revision petitioner was recorded. Then the evidence was re-opened and further evidence was recorded. Thereafter the evidence was closed. The statement of the revision petitioner under Section 313 of the Code of Criminal Procedure was recorded and now the case is posted for defence evidence and hearing. While so, the revision petitioner filed a petition under Section 309 of the Code of Criminal Procedure seeking an order to stay the case till her husband turns to be fit Crl.R.P.No.754 of 2007 2 to face the trial. The learned magistrate having failed to find any reason to stay the case, dismissed the petition. Assailing the legality, correctness and propriety of the above order, this revision petition was filed. 2. Having heard either side and perusing the records, I find that, in fact, the revision petitioner has no case that since her husband who is the second accused is under going treatment for mental illness, she could not formulate her defence for cross examining the prosecution witnesses. Reply notice sent jointly would show that the revision petitioner had admitted the liability, but the plea was one of discharge. It was also pleaded that the cheque was issued as security. Defence was already formulated. Evidence for the prosecution was over. What else remaining is the proof regarding discharge and that the cheque was issued as security. Till the recording of the statement of the revision petitioner under Section 313 of the Code of Criminal Procedure, there was no case that there was any impediment in formulating the defence. Therefore, it couldn’t be held that there is any impediment in formulating the defence. Such being the materials on record, no circumstance warranting postponement or adjournment of trial under Section 309(2) exists as found by Crl.R.P.No.754 of 2007 3 the trial court. I find no error, illegality or impropriety committed by the learned magistrate in declining the request for adjournment under Section 309 of the Code of Criminal Procedure. The order impugned is not vitiated by any error, illegality or impropriety to be rectified in exercise of the revisional powers. In the above circumstance, this revision petition is dismissed as devoid of merit. P.S.GOPINATHAN, JUDGE skj.