IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 Crl.MC.No. 3855 of 2011() ------------------------ ST.43/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, THIRUVANANTHAPURAM .................. PETITIONER / COMPLAINANT : ---------------------------------------------- B.MANOMOHAN S/O.K.BALAKRISHNAPILLAI, G51, PRS COURT, AMBUJAVILASOM ROAD, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADVS. SRI.BLAZE K. JOSE SMT.B.BINDU SMT.N.DEEPA RESPONDENT / ACCUSED : --------------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JAYAKUMAR.G., "APSARA" ULLOOR GARDENS, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN 695009. R1 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN R2 BY ADV. SRI.M.RAMASWAMY PILLAI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 3855 of 2011() APPENDIX PETITIONERS' EXHIBITS : ANNEXURE-1. A TRUE COPY OF THE COMPLAINT IN ST NO.43/2010 ON THE FILE OF JFCM-VI, THIRUVANANTHAPURAM. ANNEXURE-2. A TRUE COPY OF THE PETITION FILED AS CMP NO.40/2011 IN ST 43/2010. ANNEXURE-3. A TRUE COPY OF THE OBJECTION FILED BY THE ACCUSED AS CMP NO.40/2011 IN ST 43/2010. ANNEXURE-4. A TRUE COPY OF THE ORDER IN CMP NO.40/2011 IN ST 43/2010 OF JFCM-VI, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE Mn N.K.BALAKRISHNAN, J. -------------------------------- Crl.M.C. No.3855 of 2011 ----------------------------------- Dated this the 8th day of December 2011 O R D E R The complainant in S.T.No.43/2010 of J.F.C.M. Court- VI, Thiruvananthapuram challenges Annexure 4 order. That order was passed on an application filed by him under Sec.311 Cr.P.C. The complaint was filed against the respondent alleging offence punishable under Sec.138 of N.I.Act. The complainant was examined as PW1. Subsequently, an application was filed to examine one Ramadas to prove the case of the complainant regarding the transaction. That petition was objected to by the respondent/accused stating that the name of Ramadas was not mentioned in the complaint as a witness to be examined nor was in a witness list filed before the court before PW1 was examined. The court below dismissed the petition stating that the name of the witness (Ramadas) was not Crl.M.C. No.3855 of 2011 -: 2 :- mentioned in the complaint. 2. The learned counsel for the petitioner submits that though the name of the 2nd witness, Ramadas was not mentioned in the complaint, for the ends of justice the court below should have allowed the application to examine that witness since the examination of that witness will cause no prejudice to the accused. 3. The learned counsel appearing for the respondent/accused would submit that power under Sec.311 Cr.P.C. has to be exercised only sparingly and that, the complainant cannot fill up the lacuna occurred during the cross examination of the complainant, as otherwise, it will cause serious prejudice to the accused. The learned counsel for the petitioner submits that the name of the witness was not mentioned in the complaint since the statutory notice sent to the accused, one in the residence address and other in the place of business, were returned unclaimed and so the complainant thought that there would Crl.M.C. No.3855 of 2011 -: 3 :- be no serious contention regarding the transaction. There is force in the submission made by the learned counsel for the petitioner. 4. Considering all the aspects, I find that the examination of Ramadas is not likely to prejudice the accused. An opportunity has to be given to the complainant to examine the aforesaid witness - Ramadas. Hence, Annexure 4 order is set aside. In the result, this Crl.M.C. is allowed. Annexure 4 order is set aside. The petitioner will take steps to get the witness examined at the earliest. N.K.BALAKRISHNAN, JUDGE. Jvt