IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.MC.No. 355 of 2006() --------------------------- CC.6/1999 OF CHIEF JUDICIAL MAGISTRATE COURT-I, KOTTAYAM .............................................................................................. PETITIONER: -------------- M. NARENDRAKUMAR, ADVOCATE, 42/1211-MATHAI MANJURAN ROAD, TATAPURAM P.O., COCHIN-14. BY ADV. SRI.M.BALAGOVINDAN RESPONDENT(S): ------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ALEYKUTTY DAVID GOMES, SORTING ASSISTANT, R M S OFFICE, ALAPPUZHA. 3. SHERLY FRANCIS, CHITTETTU HOUSE, KANNADIYURUMBU, PALA. ADV. SRI.BIJI MATHEW FOR R2 SRI. VENUE RAJU FOR R2 PUBLIC PROSECUTOR SRI. P. RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER, J. ------------------------------------- Crl. M.C. No. 355 of 2006 -------------------------------------- Dated this the 30th day of September, 2009 ORDER Petitioner who is a member of the Kottayam Bar was engaged by respondent number 2 to defend her in a prosecution under Section138 of the Negotiable Instruments Act. The above proceedings were initiated by respondent No.3 herein. 2. It appears that the trial Court found respondent No.2, guilty of the offence alleged against her. She was accordingly convicted and sentenced. However in appeal, the order of conviction and sentence was set aside by the Additional Sessions Judge, Fast Track Court (Adhoc – I) Kottayam and the case was remitted to the trial Court for “Re trial”. 3. The grievance of the petitioner is that he has now been summoned by the Court of the Chief Judicial Magistrate, Kottayam as a witness on the side of the defence. Annexure – IV is stated to be the summons received by the petitioner. It is not discernible from the materials available on record, as Crl.M.C.No. 355/2006 2 to what persuaded the learned Magistrate to summon the petitioner as a witness, especially since he had only defended respondent No.2 before the trial Court in that case. Obviously, the learned Magistrate has issued summons to the petitioner without a proper application of mind. Therefore the order directing the petitioner to appear before the Court as a witness is quashed. However it will be open to respondent No.2, to make a motion to summon the petitioner for sufficient reasons to be stated. The learned Magistrate shall consider the application, if any, that may be filed by respondent No.2 in this regard. Summons shall be issued only if the summoning of the petitioner as a witness is found to be absolutely essential. Criminal M.C is allowed in the above terms. A.K BASHEER, JUDGE ss