IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 4130 of 2006()
1. UTHAMAN. V., ARUN NIVAS,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. D. UDAYADAS, PADINJARAPUTHENPURAYIL
3. ANI, S/O.PADBHANABHAN,
4. THE S.N.D.P. BRANCH NO.776,
For Petitioner :SRI.J.OM PRAKASH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :30/01/2007
O R D E R
R. BASANT, J.
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Crl.M.C.No. 4130 of 2006
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Dated this the 30th day of January, 2007
O R D E R
The petitioner is the complainant in a prosecution under
Section 138 of the N.I. Act. According to the petitioner, an amount
of Rs.1,50,000/- is due to him under the cheque from the accused.
The drawer of the cheque is the third accused, an S.N.D.P. Sakha
Yogam. The other accused are the signatories of the cheque – its
President and Secretary. Notice of demand was duly issued and
received. It did not evoke any response. Later, after the
commencement of the trial, a defence appears to have been raised
that subsequent to the receipt of the notice of demand there has been
discharge of the liability of the amount of Rs.1.5 lakhs due under the
cheque by the accused to the complainant. A voucher is pressed into
service in support of this contention. When the complainant was in
the witness box he denied the said voucher. Later one of the accused
went into the witness box in an attempt to prove the said document,
which is marked as Ext.D1.
Crl.M.C.No. 4130 of 2006 2
2. The petitioner/complainant found himself in an embarrassing
situation. The receipt had not been pleaded in reply to the notice.
Strangely though it is the case of the accused that an amount of Rs. 1.5
lakhs had been paid after the notice of demand was issued, the cheque
continued to be in the possession of the complainant. No satisfactory
explanation appears to have been offered for the continued possess of the
cheque by the complainant.
3. The complainant now finds himself in an unenviable situation.
Ext.D1, though denied by him, has been thrust into evidence by
examination of the defence witnesses. The complainant wants to show that
in the normal course such a payment could not have been made by the
President or the Secretary without due authorisation from the Managing
Committee of the Sakha. In his attempt to disprove Ext.D1, he wanted the
Vice President and another Member of the Sakha to be examined as
witnesses in an attempt to prove that such payment could not have been
made without the knowledge/approval of the Managing Committee. As
the complainant’s evidence had already been closed, the complainant filed
an application under Section 311 Cr.P.C. to examine those witnesses. By
the impugned order the learned Magistrate dismissed the said prayer. The
Crl.M.C.No. 4130 of 2006 3
complainant claims to be aggrieved by that order and has come to this
Court with a prayer to invoke the powers under Section 482 Cr.P.C. to set
aside the said order and to direct the learned Magistrate to invoke the
powers under Section 311 Cr.P.C. to permit the complainant to examine
those witnesses.
4. The learned Magistrate appears to have felt that examination of
the Vice President and another Member of the Managing Committee of the
Sakha would offend the constitutional guarantee against self incrimination
for the third accused. Less said about this contention the better. There is
no element of testimonial compulsion against the third accused when an
officer of the third accused in his capacity as such officer is to be examined
by the complainant. The theory of self incrimination cannot at all apply.
5. The short question that remains to be considered is whether this is
a fit case where the jurisdiction under Section 311 Cr.P.C. ought to be
invoked by the learned Magistrate and whether for failure/omission to
invoke such jurisdiction the powers under Section 482 Cr.P.C. can or need
be invoked by this Court.
6. Having considered all the relevant inputs, I am certainly in
agreement with the learned counsel for the petitioner that the denial of
Crl.M.C.No. 4130 of 2006 4
opportunity to the petitioner/complainant to examine the necessary
witnesses to prove the falsity and improbability of Ext.D1 would result in
miscarriage of justice. This is eminently a fit case where the learned
Magistrate must have invoked his powers under Section 311 Cr.P.C. In
not invoking such powers, I am satisfied, failure of justice results and to
avoid the same, this Court will be justified in invoking the powers under
Section 482 Cr.P.C.
7. This Crl.M.C. is in these circumstances allowed. The impugned
order is set aside. The learned Magistrate shall grant the petitioner
opportunity under Section 311 Cr.P.C. to examine the witnesses as
requested by him i.e., the Vice President and a Member of the Managing
Committee of the Sakha Yogam.
(R. BASANT)
Judge
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