IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 703 of 2008()
1. PROF.C.JOSEPH, EDWARD, CHERUKADU VEEDU,
... Petitioner
Vs
1. K.C.VARGHESE, KALAPPURACKAL VEEDU,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.R.SANTHOSH BABU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :07/07/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No.703 of 2008
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Dated this the 7th day of July, 2008
ORDER
The petitioner faces indictment in a prosecution under
Sec.138 of the Negotiable Instruments Act. Signature in the
cheque is admitted. Notice of demand did not evoke any
response. The petitioner is a Lecturer in the St. Aloysious
College, Edathua. The case under Sec.138 of the N.I. Act was
initiated as early as in 2003. The prosecution evidence was
closed and it was posted for 313 examination on 31/8/05. The
petitioner did not adduce any defence evidence. An application
under Sec.311 Cr.P.C. to examine the defence witnesses was
filed first on 21/11/05. That petition was allowed. But
witnesses were not examined. Later, a second application was
filed again under Sec.311 for permission to examine the
witnesses. That was also allowed; but the witnesses were not
examined. It is, in these circumstances, that on 3/12/07 the
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present application was filed to reopen the defence evidence and
permit the petitioner to examine the same witnesses. By the
impugned order, the learned Magistrate rejected the application.
2. The learned counsel for the petitioner submits that there
were justifiable reasons for not filing the petition earlier and that
the present application is absolutely justified. The learned
Magistrate erred grossly in rejecting the third application filed
under Sec.311 Cr.P.C. to permit the petitioner to examine the
witnesses.
3. The learned counsel for the respondent/complainant
opposes the application vehemently. The learned counsel for
the respondent/complainant submits that the transparent
intention of the petitioner is to further protract the proceedings
which have commenced as early as in 2003. In any view of the
matter, the impugned order, being an interlocutory order, does
not warrant interference by invocation of the jurisdiction under
Sec.482 Cr.P.C. Ample opportunities have already been granted
and it may not be lost sight of that the complainant’s evidence
was closed and the matter was posted for 313 examination to
31/8/05. No further indulgence may be shown. If the petitioner
wants to challenge the impugned order, he may be directed to
challenge the same, if necessary, along with the final orders to
be passed in C.C.No.134/03. In any view of the
Crl.M.C. No.703 of 2008 -: 3 :-
matter, there is no justification in the prayer for invocation of the
jurisdiction under Sec.482 of the Cr.P.C, submits the learned
counsel for the respondent/complainant.
4. I have considered all the relevant inputs. I take note of
the fact that the signature in the cheque is admitted. I take note
of the fact that the notice of demand, though received, had not
evoked any response. I take note of the further fact that the
petitioner is expected to be a responsible person – a Lecturer in
a College. I take note of the further fact that two opportunities
had already been given to reopen the evidence at the defence
stage.
5. I shall carefully avoid any detailed discussions on merits
about the acceptability of the contentions of the petitioner.
Sufficient it to say that the petitioner, if he wants to challenge
the impugned order, must certainly be directed to wait till the
case is disposed of. Along with the final orders if necessary, he
can challenge the impugned order also. The impugned order, by
any stretch of imagination, can only be held to be an
interlocutory order. The law frowns upon attempts to challenge
interlocutory orders during the pendency of the proceedings.
This policy of law is reflected clearly in Sec.397(2) Cr.P.C. which
proscribes challenges against interlocutory orders during the
pendency of the proceedings. I am not persuaded to agree that
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the powers under Sec.482 of the Cr.P.C. can or ought to be
invoked in the facts and circumstances of this case.
6. This Crl.M.C. is, in these circumstances, dismissed. I
may hasten to observe that the dismissal of this petition will not
in any way fetter the rights of the petitioner to raise all
contentions to justify his claim for acquittal before the trial court
and also to raise all contentions including the contentions
against the impugned order, if found necessary, before the
appellate and the revisional courts.
7. The learned counsel for the 1st respondent submits that
there may be a direction for expeditious disposal of the
proceedings which has been pending from 2003. I need only
observe that the learned Magistrate must dispose of the case as
expeditiously as possible – at any rate, within a period of 60 days
from the date on which a copy of this order is placed before the
learned Magistrate.
8. Hand over a copy of this order to the learned counsel for
the 1st respondent.
Sd/-
(R. BASANT, JUDGE)
Nan/
`//true copy// P.S. to Judge