IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH APRIL 2011 / 6TH VAISAKHA 1933 Crl.MC.No. 1251 of 2011() ------------------------- STC.2249/2008 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER(S): ACCUSED ---------------------- G.M.HANEEF, S/O. ABDUL KHADER, AGED 40 YEARS, NEAR ANANTHABHATTA, BASAVESWARA KUSHAL NAGAR, KARNATAKA. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------ 1. N.MAJEED HAJI, S/O. MUHAMMED, AGED 44 YEARS, A.M.HOUSE, NEAR JUMA MASJID, VALAPATTANAM.P.O., KANNUR DISTRICT-670010. 2. STATE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.SUNIL NAIR PALAKKAT FOR R1 SRI.K.N.ABHILASH FOR R1 SMT.R.LEELA FOR R1 PUBLIC PROSECUTOR SRI.C.NAZAR FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ---------------------------------------------- Crl.M.C.No.1251 of 2011 ---------------------------------------------- Dated this the 26th day of April, 2011 O R D E R Petitioner is accused in S.T.No.2249 of 2008 of the Court of Judicial First Class Magistrate's Court-I, Kannur, for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). Learned Magistrate had granted him permanent exemption from appearance. After questioning under Section 313 of the Code of Criminal Procedure (for short, 'the Code') was over, the case was posted on 11.1.2011 for defence evidence. Counsel for petitioner could not appear in Court on that day. The case was posted on 18.2.2011 for hearing. On 18.2.2011, petitioner filed a petition under Section 315 of the Code to examine himself as a witness. It is submitted that the said petition was not entertained, since according to the learned Magistrate, a petition under Section 311 of the Code also is required to consider the petition under Section 315 of the Code. Accordingly, C.M.P.No.677 of 2011 was filed under Section 311 of the Code. On 11.3.2011 on which day the case was posted, there was no sitting and hence the case was Crl.MC.1251/11 - 2 - posted to 8.4.2011. On that day, petitioner could not appear and hence, his counsel made a request for time. Learned Magistrate dismissed C.M.P.Nos. 676 and 677 of 2011 vide Annexures-IV and V, orders dated 8th April, 2011. The said orders are under challenge. Learned counsel requested that petitioner may be given an opportunity to examine himself as witness. 2. Heard learned counsel for petitioner, first respondent and the learned Public Prosecutor. 3. Having regard to the contentions raised by petitioner with respect to the alleged execution of the cheque, I am inclined to give petitioner an opportunity to adduce evidence as prayed for in C.M.P.No.676 of 2011. Therefore, this Crl.M.C is allowed in the following lines: Annexures IV and V, orders dated 8th April, 2011 on C.M.P.Nos. 676 and 677 of 2011 (in ST.No.2249 of 2008 of JFCMC-I, Kananur) are set aside and those petitions will stand allowed. Learned Magistrate shall post the case for examination of petitioner as a witness as prayed for in C.M.P.No. 676 of 2011. Sd/- THOMAS P. JOSEPH, JUDGE vgs /true copy/ PS TO JUDGE