IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 Crl.MC.No. 932 of 2010() ------------------------ CMP.5154/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... PETITIONER(S): ACCUSED: ----------------------------------------- CHANDRABABU,S/O.PUSHPANGADHAN, AGED 43 YEARS, KIZHEEKUNNATHU VEETTIL, PUSHPAKANTAM KARA, PARATHODU VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. PEETHAMBARAN,S/O.PADMANABHAN,AGED 46 YEARS, BLOCK NO.118,THOOKKUMPALAM KARA, PAMBADAMPARA VILLAGE. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. SRI.GRASHIOUS KURIAKOSE R2 BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.932/2010 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE PETITIOIN SUBMITTED BY THE 1ST RESPONDENT ON 26/11/2009. ANNEX.2: COPY OF THE ORDER DTD. 06/02/2010 IN CMP. NO.5154 OF 2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDAM. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 932 of 2010 ==================================== Dated this the 17th day of June, 2011 O R D E R Petitioner is the accused in S.T. No.546 of 2006 of the court of learned Judicial First Class Magistrate, Nedumkandom for offence punishable under Sections 138 of the Negotiable Instruments Act. That case arose on a complaint preferred by the first respondent who alleged that on 17.05.2005 petitioner borrowed Rs.65,000/- from him promising to repay the same within one month and on 25.06.2005 for discharge of that liability, issued the cheque in question. First respondent issued notice of dishonour and after complying with formalities filed the complaint as aforesaid. Evidence of first respondent was over and petitioner was questioned under the 313 of the Code of Criminal Procedure. Petitioner examined the Manager of the drawee Bank as D.W.1 and proved Annexures D1 to D4. Case was posted for hearing. At that stage first respondent came with a request to reopen the case by filing C.M.P. No.5154 of 2009. That request was allowed by the learned Magistrate by the impugned order which is under challenge. Learned counsel contends that it is without assigning CRL.M.C. No. 932 of 2010 -: 2 :- any reason that the request (for reopening) was allowed. It is contended that in the petition for reopening there is no mention as to who all are to be recalled or summoned for examination on behalf of the first respondent and without even adverting to that, learned Magistrate has allowed the petition. It is also contended that attempt of first respondent is to fill up the lacuna in the case. According to the learned counsel even on the allegations made in the complaint no offence of cheating would stand since the alleged transaction was on 17.05.2005 and alleged execution of the cheque was on 26.05.2005. Learned counsel for first respondent contended that it is only when D.W.1, Manager of the drawee Bank was examined that it was revealed that the cheque given by the petitioner was drawn on the account maintained by his wife which amounted to cheating punishable under Section 420 of the IPC. It was in the circumstances that petition was filed to reopen the case to adduce evidence which was allowed by the learned Magistrate. It is submitted by learned counsel that appropriate witness list or application to recall first respondent would be filed after case is reopened. 2. It is not disputed that the Manager of drawee Bank was not examined by the first respondent. Instead, he was CRL.M.C. No. 932 of 2010 -: 3 :- examined as D.W.1 by the petitioner. There was no reply from the petitioner to the statutory notice served on him (as learned counsel for first respondent contends). If that be so, there is merit in the contention of first respondent that he learned that the cheque (allegedly) given by petitioner was drawn on the account maintained by wife of petitioner. That is what the first respondent has stated in C.M.P. No.5154 of 2009. In the circumstances I am not inclined to think that attempt of second respondent is to fill up the lacuna. 3. What is 'lacuna' has been 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 (1999 [2] KLT 779 [SC]). It is held that 'lacuna' in the prosecution is the inherent wedge in the prosecution matrix. Here first respondent proceeded as if offence involved is under Sec.138 of the Act. The Supreme Court in Iddar v. Aabida (AIR 2007 SC 3029) held that the request to examine additional witness cannot be blocked even if the attempt is to fill up or plug loopholes. It is said that the said aspect is only subsidiary and CRL.M.C. No. 932 of 2010 -: 4 :- what is required is whether evidence let in by the parties could be accepted or not. Having regard to the facts and circumstances, I am not inclined to accept the contention that attempt is to fill up lacuna. Nor do I find reason to interfere with the impugned order. 4. It is not necessary for me to go into the question whether any charge of cheating under Section 420 of the IPC, in view of the contention of petitioner that the transaction was on 17.05.2005 and alleged execution of cheque was on 25.06.2005 would lie. That is a matter which learned Magistrate has to decide in case there is a request to alter charge under Section 420 of the IPC. Criminal Miscellaneous Case is disposed of with the above observation. THOMAS P. JOSEPH, JUDGE. vsv