IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Crl.MC.No. 2638 of 2008() ------------------------- CC.883/2002 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONERS: COMPLAINANT & WITNESS NO.4 ------------ 1. P.I.DEVASIA, 70 YEARS, S/O.ITTYAVIRAH PARAYIL HOUSE, PLASSANAL PO., MEENACHIL TALUK KOTTAYAM. 2. ELSIE DEVASIA, 66 YEARS PARAYIL HOUSE, PLASSANAL PO., MEENACHIL TALUK, KOTTAYAM BY ADV. SRI.PAUL MATHEW (PERUMPILLIL) SRI.P.V.SREENIJIN SMT.K.B.SONY SRI.PRASUN.S SRI.SANU.S.PANICKER RESPONDENTS: ACCUSED AND STATE ------------- 1. UNNIKRISHNAN, S/O.APPU KUTTAN, CHEMPAMPADATHU, KARAKURISSI, OTTAPALAM, PALAKKAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.A.F.SEBASTIAN FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.2638 of 2008 ------------------------------------- Dated this the 21st day of August, 2008 ORDER Petitioners are the complainant in a prosecution under Section 138 of the Negotiable Instruments Act and his wife who has been cited as a witness by the accused on his side. The petitioners submit before the Court that with absolutely mala fide and vexatious intent, the 2nd petitioner has been cited by the accused as a defence witness and unnecessarily vexatious steps are being taken at the instance of the respondent/accused to annoy, insult and vex the 2nd petitioner by insisting on her appearance before court. There is absolutely no connection for the 2nd petitioner with the facts of the case and in these circumstances the action taken to procure the presence of the 2nd petitioner as a witness may be set aside by invoking the jurisdiction under Section 482 Cr.P.C. 2. After hearing the learned counsel for the petitioners and the respondent/accused, it was held that a detailed report must be obtained from the learned Magistrate. The detailed report has been obtained. Both counsel have advanced their detailed arguments. I have considered all the relevant aspects. Crl.M.C. No.2638 of 2008 2 3. The complainant filed the complaint under Section 138 of the Negotiable Instruments Act against the respondent/accused alleging that a cheque for Rs.3 lakhs issued by the accused to the complainant for the due discharge of a legally enforcible debt/liability was dishonoured on the ground of insufficiency of funds. Notice of demand was issued. It was duly received by the accused. No reply was issued to the notice of demand. At the stage of trial when the complainant was in the box, he was cross examined. The accused contended that the 2nd petitioner had entered into a property transaction with the accused and she had executed an agreement for sale of that property and had handed over a cheque in respect of that transaction. No other specific suggestions were made, which would show any involvement of the 2nd petitioner/wife of the complainant in the transaction in question. At the stage of 313 examination also, though there is a contention that there was a dispute between one Paulose and the complainant and the cheque was handed over by the accused to the said Paulose and from the said Paulose, the complainant had received it, no specific role is even suggested for the 2nd petitioner/wife of the complainant in the specific transaction in question. Crl.M.C. No.2638 of 2008 3 4. It is at this juncture at the defence stage that the accused wanted the 2nd petitioner/wife of the complainant to be summoned as a witness. The learned Magistrate allowed the said request. Summons was issued. She did not appear before the learned Magistrate on the plea that she is ill. Now coercive processes have been issued against the 2nd petitioner. It is, in these circumstances, that the prayer is made to quash the processes issued against the 2nd petitioner. It is submitted that discretion under Section 254(2) Cr.P.C did not deserve to be invoked in favour of the accused. The presence of the 2nd petitioner need not be insisted at all as a witness. Powers under Section 482 Cr.P.C may be invoked to quash the coercive processes issued against the 2nd petitioner, it is prayed. 5. I find merit in the plea of the 2nd petitioner. Under Section 254(2) Cr.P.C, the learned Magistrate certainly has discretion to issue summons to any defence witness whom the accused wants to examine. But satisfactory reasons must be shown to exist as to why and for what purpose such witness has to be examined. Without application of mind, no witness can be summoned by a Magistrate under Section 254(2) Cr.P.C. In the instant case, I first of all take note of the fact that the accused Crl.M.C. No.2638 of 2008 4 had not issued any reply to the notice of demand. I have been taken through the cross examination of PW1. No specific role is assigned for the wife of the complainant with the transaction in question. Of course, there is a contention that the wife of the complainant had entered into an agreement with the accused. A copy of that agreement was shown to the complainant when he was in the box. But the same was not marked. On my request, a copy of that agreement dated 21.06.2000 is shown to me. The recitals in that agreement show that the cheque involved in this case ie. 678149 has nothing to do with that transaction and the said agreement recites that another cheque bearing No.813678 dated 22.06.2000 was handed over by the accused to the 2nd petitioner in that transaction. That cheque has nothing to do with the cheque involved in this prosecution. 6. I have been taken through the 313 statement of the accused also. That also does not in any way reveal that the 2nd petitioner has any nexus with the transaction in question and issue of the cheque in respect of which the prosecution under Section 138 of the Negotiable Instruments Act has been initiated against the accused. Crl.M.C. No.2638 of 2008 5 7. I am, in these circumstances, satisfied that there is absolutely no substance in the request that the 2nd petitioner must be examined as a defence witness in the case. I find merit in the submission of the learned counsel for the petitioners that such attempt is being made only to vex and harass the petitioners and thus coerce them to accept the terms of the accused. In any view of the matter, I am not persuaded to agree that there is any reason to justify summoning of the 2nd petitioner as a witness in this prosecution. 8. In the result: i) This Crl.M.C is allowed; ii) All steps taken to procure the presence of the 2nd petitioner for examination as a defence witness in this case are set aside; iii) The learned Magistrate is directed to expeditiously complete the trial of the case without examining the 2nd petitioner and pass appropriate orders. (R.BASANT, JUDGE) rtr/-