IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 Crl.MC.No. 4770 of 2008() ------------------------- AGAINST THE ORDER DATED 25/11/2008 IN CRMP. 6513 /2008 IN CC.104/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... PETITIONER/ACCUSED: --------------- THYAGARAJAN, AGED 51 YEARS, S/O.DIVAKARAPANICKER, PRABHAVILASAM VEETTIL, MAROOR MURI ENADIMANGALAM VILLAGE PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENTS/STATE & COMPLAINANT --------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.M.BHASKARAN PILLAI, THEEKEMODIYATHU, PERUMPULICKAL MANNAM NAGAR, PANDALAM. PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4770 of 2008 ---------------------------------------- Dated this the 10th day of December 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. The case stood posted to 21/11/2008 for defence evidence. The petitioner filed an application for issue of summons to a witness cited by him. That petition was dismissed by the impugned order. The petitioner claims to be aggrieved by the said order. 2. The learned counsel for the petitioner submits that the dismissal of the petition is totally unjustified. From the time of issue of the reply notice, the petitioner had taken up a specific contention that the cheque was handed over to a friend of the complainant by the brother of the petitioner in a transaction between them. That cheque has been misutilised by the said person (that is the witness cited) in collusion with the complainant to foist this false case on the petitioner. The learned Magistrate, submits the learned counsel for the petitioner, erred grossly in rejecting the application to issue summons on the sole ground that the petitioner had not Crl.M.C.No.4770/08 2 produced that witness. The witness is a friend of the complainant and the petitioner will not be able to produce the said witness. This aspect of the matter has not been adverted to at all by the learned Magistrate. In these circumstances, the impugned order may be set aside and the learned Magistrate may be directed to consider the application for issue of summons afresh in the light of the other facts and circumstances of the case including the fact that even in the reply notice as also during cross-examination and 313 examination, this contention has been raised specifically. 3. I have heard the learned counsel for the petitioner. I find merit in the contention of the learned counsel for the petitioner. The learned Magistrate does not appear to have adverted to the physical impossibility of the petitioner to produce the witness. I am, in these circumstances, satisfied that this Crl.M.C can be allowed. I am further satisfied that it is not necessary to waste time for issue and return of notice to the respondent/complainant. The learned Magistrate can be directed to consider the matter afresh after hearing the respondent/complainant. Crl.M.C.No.4770/08 3 4. In the result, a) This Crl.M.C is allowed. b) The impugned order dated 25/11/2008 in Crl.M.P.No.6513/2008 is set aside. 5. The learned Magistrate is directed to dispose of the petition afresh, in accordance with law, after adverting to all relevant circumstances and after hearing both sides. 6. Hand over copy of this order to the learned counsel for the petitioner forthwith. (R.BASANT, JUDGE) jsr Crl.M.C.No.4770/08 4 Crl.M.C.No.4770/08 5 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008