IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 28048 of 2005(L) ------------------------------------- PETITIONER(S): ---------------------- V.ABDUL KAREEM, AGED 62 YEARS, SON OF AVUNNI MUSALIAR, VALIYAPARAMBIL HOUSE, PUNNA, CHAVAKAD P.O., TRISSUR. BY ADV. SRI.R.PUSHPANGATHAN PILLAI RESPONDENT(S): ------------------------- P.VEERARAGHAVAN, GURU KRIPA, RAJAJI ROAD, COCHIN-35. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 28048 OF 2005: PETITIONER'S EXHIBITS: EXT.P1.PHOTOSTAT COPY OF COMPLAINT IN CC NO.2239/98 OF THE CJM EKM. EXT.P2.TRUE PHOTOSTAT COPY OF THE PETITION DATED 1.9.2005. EXT.P3. TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 9.9.2005 IN WPC NO.26965/2005 OF THIS HONOURABLE COURT. K.M.JOSEPH , J. ------------------------------------------------------ W.P.(C) .No.28048 of 2005-L ---------------------------------------------- Dated, this the 30th day of September, 2010 J U D G M E N T The prayer in the writ petition is as follows: “to issue appropriate direction to the Chief Judicial Magistrate, Ernakulam commanding the court below to permit the petitioner to avail his legal remedies against the order passed on 29-9-2005 in Crl MP No.4327 of 2005 (Exhibit P2 application) before pronouncing the final judgment in CC No.2239/1998 on the file of the said court forthwith.” 2. Briefly put, the case of the petitioner is as follows: Petitioner is the accused in CC No.2239/1998. The prosecution is for an offence punishable under Sec.138 of the Negotiable Instruments Act based on Ext.P1 complaint. Petitioner entered appearance. After completing complainant's evidence Section 313 statement was recorded. Thereafter, petitioner submitted witness list. It is his case that the transaction is in connection with real estate business. It is submitted that he has not signed the cheque and the signature is not his and it has been forged by the respondent. He filed Ext.P2 petition to send the cheque for the opinion of WPC 28048/2005 -2- handwriting expert. The learned Magistrate did not pass any order on the application but posted the same to 12.9.2005 along with the main case for final hearing. Petitioner apprehended that the Court below will pronounce the judgment after hearing the matter simultaneously dismissing Ext.P2 application. Therefore, petitioner had approached this Court and this Court directed the Magistrate to consider Ext.P2 application before pronouncing the judgment vide Ext.P3 judgment. The learned Magistrate, upon production of the judgment, insisted upon hearing of Ext.P2 application on the very same day and at the very same time and immediately thereafter passed the order dismissing the application. This was followed by insisting for final argument on the criminal cases shadowing the entire chances of the petitioner to avail his remedies under Section 482 CrPC. The request for one day's time was refused and the criminal case is posted for judgment on 30.9.2005. 3. I heard the learned counsel for the petitioner and also the learned counsel for the respondent. Learned counsel for the for the respondent would point out that this WPC 28048/2005 -3- Court has already dismissed Crl.MC No.3569/2005, that is to say, the petitioner had filed Crl.MC No.3569/2005 against the order dated 29.9.2005. Whatever that be, the prayer in the writ petition is only to permit the petitioner to avail his legal remedies open to him. It is for the petitioner to pursue the remedy if he is so advised. I do not think that it is appropriate for this Court to keep this writ petition pending in view of the subsequent circumstance and the passage of nearly 5 years. Accordingly, without prejudice to the right of the petitioner as against the order dated 29.9.2005 which he may pursue on the basis of the Crl.M.C filed by him the writ petition is dismissed. (K.M.JOSEPH) JUDGE. MS