IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 2510 of 2006() ------------------------- CRRP.47/2004 of II ADDL. SESSIONS COURT, TRIVANDRUM CC.290/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD (CRL.M.P 6283/2004) .................... PETITIONER(S): PETITIONER/ACCUSED --------------------------------- P.H.BASHEER, S/O.HASSAN PILLAI, PALLIPARAMBIL HOUSE, 10TH STONE, MANCHA, NEDUMANGAD. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDARAN RESPONDENT(S): COUNTER PETITIONERS/COMPLAINANT& STATE. ------------------------------------------------------ 1. VIJAYAKUMARAN NAIR, S/O. DAMODHARAN PILLAI, MADAVILAKOM HOUSE, N.C.C.ROAD, PEROORKADA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P.SRI.C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------- Crl.M.C.No.2510 of 2006 ----------------------------------- Dated this the 15th day of February, 2010 ORDER This petition is filed to quash Annexure-A1 and A2 orders of the Judicial First Class Magistrate Court-II and to allow petitioner to adduce defence evidence in C.C.No.290/2000. 2. As per Annexure-A1 order, learned Magistrate observed that despite of giving sufficient time to the accused he has not given evidence and the matter is long pending and the purpose must be to drag the proceedings and the petition was dismissed. The petition was filed under Section 311 Cr.P.C. to review an order passed by learned Magistrate in closing the evidence and for reopening the defence evidence. Annexure-A2 order is passed by learned Sessions Judge in a revision in which Annexure-A1 order was challenged. The revision filed by petitioner was dismissed, as per Annexure-A2 order. According to petitioner, dismissal of the petition filed under Section 311 Cr.P.C. has resulted in prejudice, miscarriage of justice and denial of justice to petitioner and also in shutting out the defence evidence. 2 3. On going through the records made available it is seen that petitioner filed a petition under Section 311 Cr.P.C. in C.C.290/2000. The prayer in the petition is to review the order passed by the court by which the defence evidence was closed and for reopening the defence evidence. The said petition was dismissed by learned Magistrate on the ground that petitioner did not turn up in spite of sufficient time granted and his intention appears to be to protract the case which was long pending. Annexure-A1 order was passed on 1.7.2004 whereas the case was taken on file as early as in 2000. The offence involved is under Section 138 of Negotiable Instruments Act. 4. Learned Sessions Judge considered the correctness, propriety and legality of Annexure-A1 order in the revision filed by petitioner. Learned Sessions Judge pointed out that an order passed by the criminal court cannot be reviewed under Section 311 Cr.P.C.. It is also observed that petitioner was allowed to be examined as a defence witness but the opportunity was not utilised by petitioner. Learned Senior Judge also found that even though notice was ordered to respondent in the revision, the matter was dragged on since petitioner did not take steps. 3 Therefore, notice to respondent was dispensed with and the revision was dismissed as per order dated 14.7.2006. 5. On an appreciation of the facts and circumstances, I am satisfied with the finding that the review cannot be allowed under Section 311 is only sustainable. I am also satisfied that in spite of opportunity given to petitioner, he did not take steps to serve notice on respondents and the case was pending for such a long time. The case was taken on file as early as on 2000 under Section 138 of Negotiable Instruments Act and the trial could not be completed and the matter was pending for the past 10 years. I find that an interference at this stage will result only in miscarriage of justice and hence I am not inclined to invoke jurisdiction under Section 482 Cr.P.C. It is needless to say that even if defence evidence is closed, the petitioner's remedies are not completely shut out. This petition is dismissed. K.Hema, Judge cms