Thyagarajan vs The State Of Kerala & Another on 10 December, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4770 of 2008()



1. THYAGARAJAN
                      ...  Petitioner

                        Vs

1. THE STATE OF KERALA & ANOTHER
                       ...       Respondent

                For Petitioner  :SRI.S.SHANAVAS KHAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :10/12/2008

 O R D E R
                           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

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Crl.M.C.No.4770/08 5

R.BASANT, J.

CRL.M.C.No. of 2008

ORDER

09/07/2008