IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 3513 of 2009() ------------------------------------ AGAINST THE ORDER DATED 08/10/2009 IN CMP. 123/2009 IN ST.97/2008 of JUDL. FIRST CLASS MAGISTRATE -IV, KOLLAM .................... PETITIONER/(ACCUSED) ----------------------------------- G. SUDHARSANA KUMAR, KALEELAZHIKATHU VEEDU KULAPOIKA, KANJIRACODE, KUNDARA.PO, KOLLAM. BY ADV. MR.BRIJESH MOHAN SMT.RESMI G. NAIR RESPONDENTS/(COMPLAINANT & STATE) ------------------------------------------------------------ 1. V.P. SABU, S/O.PLACID, VETTUVILA VEEDU, KANJIRACODE, KUNDARA. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.AMJAD ALI.. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3513 OF 2009 =========================== Dated this the 2nd day of November,2009 ORDER Petitioner is the accused in S.T.97/2008 on the file of Judicial First Class Magistrate Court-IV, Kollam taken cognizance for the offence under section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. The case was posted for defence evidence on 5.10.2009, after issuing warrant to the witness Assistant Transport Officer, KSRTC Depot, Kottarakkara. As the witness was not present, learned Magistrate closed the evidence. Petitioner then filed Annexure II application on 8.10.2009 under section 311 of Code of Criminal Procedure to reopen the evidence and to issue summons to the witness stating that his evidence is necessary and on 5.10.2009 his counsel could not appear as he received the emergent phone call and therefore he had to be out of station and petitioner had taken steps to issue warrant and on 5.10.2009 inspite of warrant the witness did not appear. 2. Learned counsel appearing for the petitioner Crl.M.C.3513/2009 2 submitted that as according to first respondent, the amount which was allegedly repaid by issuing the dishonoured cheque was paid on 11.11.2004 from the house at a time when petitioner was attending his duty, to establish that fact the witness is summoned and therefore without granting opportunity closing of the evidence was not justifiable and Annexure III order is to be quashed. 3. Annexure III order shows that petitioner did not take steps to issue warrant to the witness and therefore evidence was closed and there is no reason to reopen the evidence. The grievance of the petitioner is that inspite of specific statements in Annexure II petition that petitioner had taken steps and by issuing summons the witness did not appear, warrant was also issued and counsel of the petitioner could not appear on 5.10.2009 for valid reasons, the learned Magistrate was not justified in not considering those aspects and dismissed the petition by Annexure III order. 4. On hearing the learned counsel, I find that learned Magistrate was not justified in refusing to grant an opportunity to examine the witness, when petitioner has given proper reasons why the counsel could not be present on 5.10.2009. The learned Magistrate did not consider the grounds stated in Annexure II for the examination of the Crl.M.C.3513/2009 3 witness. If the examination of the witness is necessary for a just decision of the case, learned Magistrate should have invoked the power provided under section 311 of Code of Criminal Procedure. 5. As Annexure III order was passed without considering the grounds stated in Annexure II petition, Annexure III order is quashed. Learned Magistrate is directed to reconsider CMP 123/2009 and pass appropriate order in accordance with law. Petition is disposed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006