IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Crl.MC.No. 2315 of 2008() ------------------------- PETITIONER: ------------- SANJAY, PROPRIETOR,PHOENIX INFO WORLD AKSHAYA SHOPPING COMPLEX, NEYYATTINKARA. BY ADV. SRI.G.SUDHEER RESPONDENTS: ----------------- 1. GOPAKUMAR, S/O.GOPALAKRISHNAN NAIR THEKKEVEEDU, CNOODU, KATTAKADA. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R2 BY PUBLIC PROSECUTOR, SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.M.C. No. 2315 OF 2008 ----------------------------------------------- Dated this the 19th day of June, 2008 O R D E R Petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. The case was filed as early as in 2004. Cognizance was taken on 31.07.04 and thereafter the matter has been dragging on. The complainant had not filed the chief affidavit till 10.03.08. The accused has been exempted permanently from appearance. 2. On 10.03.08 the complainant filed an affidavit in lieu of chief examination and marked Exts.P1 to P5. The counsel for the accused was not present in the Court. Another counsel represented him and prayed for time for cross examination. That request was allowed on condition that the petitioner pays an amount of Rs.2,000/- as cost. The cost was directed to be paid on 11.03.08. On that day, on the representation of the petitioner that he intends to challenge the order and also move for transfer, the case has been adjourned to 21.06.08. 3. The learned counsel for he petitioner submits that the cost awarded is grossly excessive and perversely disproportionate to Crl.M.C. No. 2315 OF 2008 2 the alleged lapse/flaw on the part of the petitioner. In any view of the matter, in a prosecution under Section 138 in respect of a cheque for Rs.15,000/-, such heavy cost should not and need not have been directed to be ordered by the learned Magistrate. The complainant stays close to the court and, the inconvenience suffered by him does not also justify the imposition of such heavy cost, submits the learned counsel for the petitioner. 4. I have considered all the relevant inputs. I have gone through the order sheet that has been produced before me. The accused is not shown to be guilty of any willful laches though the matter has been pending from 2004 before the learned Magistrate. The affidavit was admittedly filed only on 10.03.08 as can be seen from the date given in the affidavit. I am in these circumstances satisfied that the learned Magistrate must have take a lenient view and permitted the accused to cross examine PW1. Counsel submits that the request on 10.03.08 was not for adjournment, but, only an accommodation so that the counsel for the petitioner could return from another court and cross examine the complainant. Crl.M.C. No. 2315 OF 2008 3 5. Be that as it may, it is unnecessary to embark on a detailed discussion about the dispute. I am satisfied that it is not necessary to wait for the issue and return of notice to the complainant. I am satisfied that the impugned order can be suitably modified by this Court invoking the powers under Section 482 Cr.P.C, in the peculiar facts and circumstances of this case. 6. In the result, this petition is allowed in part. The order directing cost of Rs.2,000/- is modified and the cost is reduced to Rs.300/-. Petitioner shall pay the amount on or before 21.06.08, in which event he shall be permitted to cross examine the complainant on that day. R. BASANT, JUDGE ttb Crl.M.C. No. 2315 OF 2008 4 Crl.M.C. No. 2315 OF 2008 5