IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1137 of 2006()
1. T.M.SADIQUE, S/O.HASSAN, "ASMAS",
... Petitioner
Vs
1. K.K.ABDUL SHAMSU,
... Respondent
2. STATE OF KERALA, REP.
For Petitioner :SRI.C.KHALID
For Respondent :SRI.T.M.ABDUL LATHEEF
The Hon'ble MR. Justice R.BASANT
Dated :19/07/2007
O R D E R
R.BASANT, J.
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Crl.M.C.No.1137 of 2006
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Dated this the 19th day of July 2007
O R D E R
The petitioner is the complainant in a prosecution under
Section 138 of the Negotiable Instruments Act. The matter has
now reached the stage of defence evidence. The accused filed
applications at the defence stage. The matter has had a
chequered career. Suffice it to say that the learned Magistrate
passed orders and allowed two requests made by the petitioner
under Annexures 3 and 4.
2. In Annexure 3, there was a direction that the
petitioner/accused shall file a consolidated additional witness list
and on payment of necessary process fee, summons shall be
issued to the additional witnesses. The short grievance of the
petitioner with respect to that direction is that the
petitioner/complainant is also shown as a witness in the defence
witness list filed by the accused. The complainant does not want
to examine himself. The complainant is prepared to take the risk
arising out of such non-examination. The petitioner has no right
to summon the complainant as a witness on his side. In these
Crl.M.C.No.1137/07 2
circumstances, it may be clarified that under Annexure 3 order,
the accused cannot choose to examine the
petitioner/complainant as a witness on the side of the accused.
That request can certainly be accepted.
3. By Annexure 4 order, the learned Magistrate has
directed the complainant to appear before the court and furnish
the required number of specimen handwriting and signature for
comparison. The learned counsel for the petitioner submits that
the complainant is employed abroad. He is unable to come to
this court now. It is further contended that the accused has no
right to insist on such appearance of the complainant. The
complainant does not in these circumstances want to furnish the
specimen signatures and handwriting of the complainant for
comparison. In the light of that specific statement made by the
learned counsel for the petitioner – that the complainant does not
want to appear and furnish the required specimen handwriting
and signatures, I am satisfied that the learned Magistrate can
take note of that assertion by the complainant and proceed with
the matter. Appropriate inference and conclusions can be drawn
on the basis of the materials made available before the learned
Crl.M.C.No.1137/07 3
Magistrate in the light of that specific assertion. I am satisfied
that the submission of the learned counsel for the
petitioner/complainant that the complainant does not want to
furnish the specimen handwriting and signatures can be taken
note of and Annexure 4 order vacated. Needless to say, the
accused will be at liberty to take necessary steps to prove the
documents by whatever other means that are available to him
under law.
4. This Criminal Miscellaneous Case is, in these
circumstances, allowed to the above extent.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007