IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 23975 of 2008(D) -------------------------- ST.10/2005 of JMFC-V, TVM (SPL.COURT-MARKLIST CASES) .................... PETITIONER: ------------ P.A.SALEEM S/O. SHAHUL HAMMED, FLAT NO.I, SAFA TOWER RAJALEKSHMI NAGAR, PATTOM,KOWDIAR VILLAGE THIRUVANANTHAPURAM BY ADV. SRI.R.MANOJ RESPONDENTS: ------------- BRAN ALI, S/O. BRAN MOITHU HAJI PROPRIETOR,BRAN EXPORTERS BRAN MANZIL, PALAMUKKU DESOM, MANOTHAVADI P.O.,MANATHAVADI. BY ADV. SRI.T.A.SHAJI FOR R1 GOVERNMENT PLEADER SRI.AMJAD ALI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.23975 of 2008 ---------------------------------------- Dated this the 29th day of August 2008 J U D G M E N T There is no representation for the petitioner. The petitioner is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The trial has commenced. Evidence of the complainant was closed. 2. The accused has taken up a defence that on the day when the cheque was allegedly executed and handed over to the complainant, the accused was not available at the place where the cheque was allegedly handed over. He was treated as an out patient at the District Ayurveda Hospital at Kalpetta on that day, it was contended. The accused produced documents in support of that contention. The complainant had wanted the out patient register of the said hospital to be summoned. It was brought before court. That document was not introduced in evidence by the complainant. The complainant insisted that the Chief Medical Officer of the District Ayurvedic Hospital, Kalpetta must be summoned as a witness. Accordingly, that witness was summoned. He was present in court on 24/6/2008. On that day, the witness was not examined. It is reported that the said witness had travelled a distance of about 800 Kms to reach the W.P.C.No.23975/08 2 court and tender evidence. That witness was discharged and the case was posted to make further progress. At that stage, the complainant filed an application to recall the said witness. The application was stoutly opposed. It was contended that the complainant who did not make use of the earlier opportunity given to him to examine the witness is not entitled for the luxury of any such further opportunity. It was also urged that the examination of the witness is unnecessary and irrelevant now as the documents which were summoned and produced do show the truth of the assertions of the accused. The summoning of the Chief Medical Officer as a witness was unnecessary when the document shows that the accused was present at that hospital for treatment as an out patient on the date in question, it was contended. The learned Magistrate took note of the circumstances and came to the conclusion that there is no merit in the petition to re-open evidence and repeating summons to the Chief Medical Officer of the District Ayurvedic Hospital, Kalpetta. It was in these circumstances that the learned JFMC-V, Thiruvananthapuram dismissed the petition and passed the impugned order. 3. In the writ petition, the petitioner contends that the witness to be summoned is a very important witness and examination of that witness was absolutely essential to introduce W.P.C.No.23975/08 3 evidence about the relevant facts before the court. The learned counsel for the respondent who alone has appeared before me to advance arguments contends that there is significant absence of data to justify the prayer made in this petition. The complainant who did have the opportunity to examine the witness who had come after traversing a long distance from Kalpetta to Thiruvananthapuram to tender evidence and who did not avail of the opportunity granted to him cannot, now, be heard to complain of denial of opportunity. In any view of the matter, the extraordinary constitutional jurisdiction available to this court under Article 226 of the Constitution of India does not deserve to be invoked at all, submits the learned counsel for the respondent. 4. Having considered all the relevant circumstances, I am persuaded to agree with the learned counsel for the respondent that there is no necessity to invoke the extraordinary constitutional jurisdiction available to this court under Article 226 of the Constitution of India to interfere with the impugned order. The impugned order, without any doubt, is only an interlocutory order. It does not decide or conclude the rights of parties. It is only a step in aid of the final disposal. It is trite that law frowns upon attempts by aggrieved persons to challenge interlocutory orders during the pendency of the proceedings before the trial court. This policy of W.P.C.No.23975/08 4 law is clearly reflected in Section 397(2) Cr.P.C which proscribes challenge against interlocutory orders before the conclusion of proceedings. Ordinarily and normally, a person aggrieved by such an interlocutory order, will have to wait for completion of proceedings to challenge such interlocutory order, if necessary. Of course, in an exceptional case, where the sense of justice of this court is wounded and there is gross failure or miscarriage of justice, the jurisdictional competence of this court to interfere with such interlocutory orders by invoking the constitutional jurisdiction cannot be doubted. But normally and ordinarily, an aggrieved party must be relegated to later stages to mount a challenge against such interlocutory orders. 5. I shall not express any final or authentic opinion on the grievance raised. Suffice it to say that after considering such grievance, I am not persuaded to agree that the extraordinary constitutional jurisdiction under Article 226 of the Constitution of India deserves to be invoked to interfere with the impugned order at this stage. 6. This writ petition accordingly fails and is hereby dismissed. (R.BASANT, JUDGE) jsr W.P.C.No.23975/08 5 W.P.C.No.23975/08 6 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007