IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3238 of 2005()
1. DAMODARAN NAIR P.,
... Petitioner
Vs
1. BABU V.K., S/O.RAGHAVAN,
... Respondent
2. STATE, REP. BY GOVERNMENT PLEADER
For Petitioner :SRI.K.B.GANGESH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :08/03/2007
O R D E R
R.BASANT, J
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Crl.M.C.Nos.3238 and 3240 of 2005
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Dated this the 8th day of March, 2007
ORDER
The petitioner faces indictment in a prosecution under Section
138 of the N.I Act. The prosecution was initiated as early as in 2000.
Complainant was examined. The complainant’s evidence was closed.
The petitioner/accused examined two witnesses of his own.
Thereafter, the accused filed two applications. In such applications,
he made the request that he may be permitted to produce an audio
cassette. He further prayed in that application that he may be
permitted to examine his son as a further witness on the defence side.
2. In the second application, he prayed that he may be
permitted to recall PW1. The purpose of this endeavour was to
confront PW1 with the audio cassette and also to produce such audio
cassette.
3. The learned Magistrate by the impugned orders rejected
the prayers. Revision petitions were entertained by the learned
Sessions Judge against the said orders, which do appear to me to be
purely interlocutory. However reckoning them as intermediatory
orders, it would appear, the revision petitions were entertained. The
learned Sessions Judge found no merit in the revision petitions and
proceeded to dismiss the revision petitions also. As a second revision
Crl.M.C.Nos.3238 and 3240 of 2005 2
is not maintainable obviously, the petitioner has come to this Court
with these petitions which bear the label of proceedings under Section
482 Cr.P.C.
4. The learned Magistrate did not grant the prayers primarily
for the reason that till then there was not a whisper of a defence
based on this cassette, which is sought to be introduced in evidence
now. When PW1 was in the witness box, no attempt was made even
to suggest the existence of such a cassette containing contradictory
statement by him. At the stage of defence evidence also, no attempt
was made to introduce such a theory. Now it is alleged that the
cassette was always available with the son of the accused.
5. Powers under Section 482 Cr.P.C are to be invoked
sparingly and in exceptional cases in aid of justice. I am not certainly
persuaded to agree that there is any such vice in the learned
Magistrate dismissing the petitions and in the learned Sessions Judge
in upholding such dismissals as to justify the invocation of the
extraordinary jurisdiction available to this Court under Section 482
Cr.P.C.
6. A party has to be alert in the prosecution of his cause. The
soul of a prosecution under Section 138 of the N.I Act will be lost if
there is no expeditious disposal. The petitioner who is unable to offer
any explanation for his failure to suggest the existence of the cassette
earlier and for not confronting the complainant with such alleged
Crl.M.C.Nos.3238 and 3240 of 2005 3
prior statement recorded in the audio cassette by him, cannot now be
permitted to invoke the extraordinary jurisdiction which will
inevitably further retard the progress of the disposal of the case. No
compelling reasons are shown to justify the invocation of such
extraordinary powers.
7. These Crl.M.C are, in these circumstances, dismissed.
Considering long pendency of the matter before the learned
Magistrate, it is directed that the learned Magistrate shall dispose of
the case as expeditiously as possible – at any rate, within a period of
one month 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 respondent for production before the learned Magistrate.
H/O
(R.BASANT, JUDGE)
rtr/-