IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2315 of 2008()
1. SANJAY, PROPRIETOR,PHOENIX INFO WORLD
... Petitioner
Vs
1. GOPAKUMAR, S/O.GOPALAKRISHNAN NAIR
... Respondent
2. STATE OF KERALA,REPRESENTED BY THE
For Petitioner :SRI.G.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :19/06/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 2315 OF 2008
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Dated this the 19th day of June, 2008
O R D E R
Petitioner faces indictment in a prosecution under Section
138 of the Negotiable Instruments Act. The case was filed as
early as in 2004. Cognizance was taken on 31.07.04 and
thereafter the matter has been dragging on. The complainant had
not filed the chief affidavit till 10.03.08. The accused has been
exempted permanently from appearance.
2. On 10.03.08 the complainant filed an affidavit in lieu of
chief examination and marked Exts.P1 to P5. The counsel for the
accused was not present in the Court. Another counsel
represented him and prayed for time for cross examination. That
request was allowed on condition that the petitioner pays an
amount of Rs.2,000/- as cost. The cost was directed to be paid on
11.03.08. On that day, on the representation of the petitioner that
he intends to challenge the order and also move for transfer, the
case has been adjourned to 21.06.08.
3. The learned counsel for he petitioner submits that the cost
awarded is grossly excessive and perversely disproportionate to
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the alleged lapse/flaw on the part of the petitioner. In any view of
the matter, in a prosecution under Section 138 in respect of a
cheque for Rs.15,000/-, such heavy cost should not and need not
have been directed to be ordered by the learned Magistrate. The
complainant stays close to the court and, the inconvenience
suffered by him does not also justify the imposition of such heavy
cost, submits the learned counsel for the petitioner.
4. I have considered all the relevant inputs. I have gone
through the order sheet that has been produced before me. The
accused is not shown to be guilty of any willful laches though the
matter has been pending from 2004 before the learned Magistrate.
The affidavit was admittedly filed only on 10.03.08 as can be seen
from the date given in the affidavit. I am in these circumstances
satisfied that the learned Magistrate must have take a lenient view
and permitted the accused to cross examine PW1. Counsel
submits that the request on 10.03.08 was not for adjournment, but,
only an accommodation so that the counsel for the petitioner
could return from another court and cross examine the
complainant.
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5. Be that as it may, it is unnecessary to embark on a
detailed discussion about the dispute. I am satisfied that it is not
necessary to wait for the issue and return of notice to the
complainant. I am satisfied that the impugned order can be
suitably modified by this Court invoking the powers under Section
482 Cr.P.C, in the peculiar facts and circumstances of this case.
6. In the result, this petition is allowed in part. The order
directing cost of Rs.2,000/- is modified and the cost is reduced to
Rs.300/-. Petitioner shall pay the amount on or before 21.06.08,
in which event he shall be permitted to cross examine the
complainant on that day.
R. BASANT, JUDGE
ttb
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