IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 Crl.MC.No. 183 of 2008() ------------------------ AGAINST THE ORDER DATED 14/11/2007 IN CRMP. 13032 /2007 IN CC.24/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHALAKUDY .................... PETITIONER: --------------- RANI JUSTIN, AGED 35, W/O. JUSTIN M.J., MULLACHETHU HOUSE, EAST KADUNGALLOOR, U.C. COLLEGE P.O. BY ADV. SRI.JAISON JOSEPH RESPONDENTS: ----------------- 1. SHAINY SUNNY, AGED 34 YEARS, W/O. SUNNY K.S., KALAPURACKAL HOUSE, NEAR IVGM, CHALAKUDY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. K.S. SIVAKUMAR, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== CRL.M.C. No. 183 of 2008 ========================== Dated this the 15th day of January, 2008. ORDER The petitioner, who is the accused in C.C. No. 24 of 2004 on the file of the Judicial First Class Magistrate, Chalakudy for an offence punishable under Section 138 of the Negotiable Instruments Act with regard to a cheque for Rs.4 lakhs, challenges the order dated 14.11.2007 passed by the Magistrate dismissing the petition filed by the petitioner as Crl. M.P. No. 13032/2007 under Section 311 Cr.P.C to examine witnesses to prove that Sheela Francis was none other than the sister of the complainant, Shainy Sunny. According to the petitioner, one out of three cheques isused by the petitioner to the complainant was passed on to Sheela Francis who is none other than the sister of the complainant and Sheela Francis had filed a complaint under Section 138 of the Negotiable Instruments Act. It was to prove the said relationship between the complainant and Sheela Francis that the petition was filed. CRL. M.C. NO. 183/2008 : 2: 2. In the first place, the petitioner had no such case when the complainant/PW1 was in the box. No suggestion was put to her to show that Sheela Francis was her sister. Moreover, the question as to whether Sheela Francis was the sister of the complainant or not was not a fact in issue in respect of which the petitioner could have adduced evidence. Even if Sheela Francis is related to the complainant, that will not bring about any legal consequences to the advantage of the petitioner. The court below was, therefore, fully justified in dismissing the petition. The evidence which the petitioner was attempting to adduce would stand excluded under Section 153 of the Evidence Act. See the decisions reported in 1992 (2) KLT 126 – Chandran vs. State of Kerala and 1999 (3) KLT 456 – State of Karnataka v. Yarappa Reddy (S.C). I therefore see no ground to interfere with the discretion exercised by the Magistrate. This Crl. M.C. is accordingly dismissed. V. RAMKUMAR, JUDGE. rv CRL. M.C. NO. 183/2008 : 3: