IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 Crl.MC.No. 423 of 2004() ------------------------ AGAINST THE ORDER DATED 19/01/2004 IN CMP 212/04 IN CC.266/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER: ACCUSED. -------------------- CHATHOTH VIMALA, W/O.V.C.RAMAKRISHNAN, KRISHNA NIVAS, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, P.O. KUTHUPARAMBA. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: COMPLAINANT,. -------------------------- P.P.MOHAMMED, S/O.HAMZA, BUSINESS, RESIDING IN SOPHELA HOUSE, TALAP, KANNUR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.1919/2004 IN CRL.M.C.NO.423 OF 2004 DISMISSED. 12-6-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. No.423 of 2004 ---------------------------------------------- Dated, 12th June, 2008. ORDER The sole accused in C.C.No.266/2000 on the file of the Judicial First Class Magistrate Court-1, Kannur is the petitioner herein who seeks to quash Annexure IV order dated 19-1-2004 in C.M.P No.212/2004 in C.C.No.266/2000 pending before the learned Magistrate. 2. C.C.No.266/2000 is a case instituted upon a private complaint filed by the respondent herein for the offence punishable under section 138 of the Negotiable Instruments Act. After taking cognizance upon the complaint, trial was proceeded and when the case was posted for defence evidence, the petitioner herein preferred CMP 212/2004 before the court below under section 311 of Cr.P.C. to recall the complainant for further cross examination. Actually, the complainant was examined on 26-6-2003 and he was cross examined on behalf of the petitioner/accused. Thereafter from 19-7-2003 onwards, the case has been adjourned for CRL.M.C.423/04 -:2:- defence evidence. The present petition i.e. CMP 212/2004 under section 311 of Cr.P.C. was filed only on 20-10-2003. The learned Magistrate has found that the reasons stated are not sufficient, adequate and enough to be allowed and the prayer is only to fill up the lacuna. So, according to the Magistrate, the prayer cannot be allowed even on cost and hence the petition was dismissed. It is the above order of the learned Magistrate challenged in this Crl.M.C. 3. Going by Annexure-II petition, it appears that according to the petitioner/accused, while PW-1 was examined on 26-6-2003, the other two cases, namely, C.C.86/2001 and C.C.1089/2002 were pending and when he was cross examined, certain questions were not put to the complainant as the same were likely to adversely affect the defence in the other cases. It is also the case of the petitioner that C.C.86/2001 was dismissed on 6.10.2003 and C.C.1089/2002 on 17-10-2003. Thus according to the petitioner, it was in this circumstances, it is necessary to recall the respondent/complainant under section 311 of the CRL.M.C.423/04 -:3:- Cr.P.C. The learned counsel submitted that the above two cases were disposed of in favour of the petitioner accepting the contentions and materials produced therein. If that be so, especially, when the case was repeatedly posted for defence evidence, the petitioner can very well produce the judgments in those cases as defence evidence and to substantiate all his contentions. 4. It is also relevant to note that as observed by the learned Magistrate, the said reasons are not sufficient to allow Annexure-A2 petition under section 311 of Cr.P.C. Section 311 of Cr.P.C., is an exception to general provisions with respect to trial of cases either summons case, or warrant case or even sessions case. Therefore, unless and until special circumstances are brought out to invoke Section 311, the trial court is not bound to allow such petition, as and when demanded. In the present case, the learned Magistrate, who had occasion to examine the materials and evidence, came to positive conclusion that the reasons given are persuasive even to allow the petition on CRL.M.C.423/04 -:4:- cost. Under such circumstances this Court is not expected to interfere with the order of the court below, especially, when the case is posted for defence evidence. 5. In fact, the above case is of the year 2000 and the complainant was examined on 26-6-2003 and cross examined. More over, Annexure A2 petition was filed only on 20-10-2003, even though the case has been adjourned for defence evidence after 26-6-2003. Hence, there is considerable delay in preferring the petition itself. Such delay is not explained. Hence, no interference is needed in Anneuxre IV order of the court below. In the result, this Crl.M.C. is devoid of any merit and the same is dismissed accordingly. V.K.MOHANAN, JUDGE kvm/- CRL.M.C.423/04 -:5:- Judgment/Order Dated: CRL.M.C.423/04 -:6:-