IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 1054 of 2007()
1. ABDHUL RAHIMAN.M.A.,
... Petitioner
Vs
1. STATE, REPRESENTED BY PUBLIC PROSECUTOR,
... Respondent
2. THE KASARGOD PRIMARY CO-OPERATIVE
For Petitioner :SRI.M.SASINDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/03/2007
O R D E R
R.BASANT, J
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Crl.M.C.Nos.1054, 1059 & 1060 of 2007
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Dated this the 30th day of March, 2007
ORDER
The common petitioner faces indictment in three separate
prosecutions, all under Section 138 of the Negotiable Instruments Act.
Trial has already commenced. The proceedings are at the defence
stage now, it is submitted. The short grievance raised by the
petitioner is that the identical request made by the petitioner in all the
three cases for an opportunity to cross examine the Secretary of the
complainant/PW1 was unjustly turned down by the learned
Magistrate. The petitioner, in these circumstances, prays that
opportunity may be granted to the petitioner to recall PW1 and cross
examine PW1. PW1 is very much available and is even now working
as Secretary of the complainant/bank, it is submitted.
2. The learned Magistrate took note of the fact that many
adjournments were made for cross examination of PW1 and the
petitioner, who has not availed of these opportunities, is not entitled
for the luxury of any such further opportunity.
3. The learned counsel for the petitioner submits that a
lenient view must have been taken by the learned Magistrate. It is
true that opportunities were granted for cross examination and the
petitioner had not cross examined PW1, but that was done bona fide
Crl.M.C.Nos.1054, 1059 & 1060 of 2007 2
under the impression/belief that the dispute will be settled and
withdrawal or composition can be effected. In as much as it had
become impossible to settle the matter, an indulgent further
opportunity must have been granted and may be granted by this
Court, it is submitted.
4. The reasons urged by the counsel for the petitioner may
not be too convincing, but I do note that PW1 has not been cross
examined at all. The petitioner wants to cross examine PW1 and the
sense of justice of this Court will be hurt, if the petitioner were denied
an opportunity to cross examine PW1, whatever be the reasons for
which he had omitted/failed to cross examine PW1 earlier. This, I am
satisfied, is a fit case, where subject to appropriate conditions, the
petitioner can be granted an opportunity to cross examine PW1. In
coming to this conclusion, the submission of the learned counsel for
the petitioner that PW1 is available even now in the locality and that
he is representing the complainant in the proceedings and continuing
to work as Secretary, does influence me considerably.
5. These Crl.M.Cs are, in these circumstances, allowed. The
petitioner shall be granted an opportunity to cross examine PW1, but
subject to the condition that he shall deposit cost of Rs.500/- (Rupees
Five hundred only) in each of these three cases before the learned
Magistrate before the next date of posting.
Crl.M.C.Nos.1054, 1059 & 1060 of 2007 3
6. Hand over a copy of this order to the learned counsel for
the petitioner.
(R.BASANT, JUDGE)
rtr/-