IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 3425 of 2006()
1. G.BABU, AGRICULTURAL OFFICER,
... Petitioner
Vs
1. G.KRISHNANKUTTY, JAYA NIVAS,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.SAJU.S.A
For Respondent :SRI.C.C.ABRAHAM
The Hon'ble MR. Justice R.BASANT
Dated :07/12/2006
O R D E R
R.BASANT, J
----------------------
Crl.M.C.No.3425 of 2006
----------------------------------------
Dated this the 7th day of December 2006
O R D E R
The petitioner is the accused in a prosecution under Section
138 of the Negotiable Instruments Act. The trial is almost complete.
Defence witnesses have been examined. The petitioner/accused cited
DW4 as witness on his side. When he was examined DW4 was
confronted with a document. DW4 admitted his signature in the
document but did not admit the contents, which were typewritten. He
took the stand that he had affixed the signature in a blank paper.
Obviously taken aback, the accused could not effectively cross-
examine him at that point of time. Later, the accused filed a petition
to recall DW4. The purpose has been explained clearly. There is a
document written in the hand of DW4 which would disprove the
theory that he had affixed his signature in a blank paper, the contents
of which is, as per the explanation of DW4, allegedly typewritten later
by the accused. When that application was made, the learned
Magistrate rejected the same for a couple of reasons. Firstly, it was
stated that the document had not been produced earlier. It must have
been available in the custody of the accused. Why did he not
produced it earlier? Secondly, it was noted that the prayer was not
supported by an affidavit. Thirdly, it was noted that the document,
even if produced and proved, may not advance the case of the
accused.
Crl.M.C.No.3425/06 2
2. I shall carefully avoid any expression of opinion on merits
lest it should prejudice the interests of the parties. But the facts
reveal the helplessness of the accused. He did not anticipate his
witness to turn hostile. But his witness DW4 turned hostile. He was
taken aback. He did not, at that point of time, have the requisite
material in his possession to confront and contradict him. He has
later secured the documents. His prayer is for an opportunity to
further examine such witness.
3. The interests of justice which is the signature tune of
Section 311 Cr.P.C must certainly have persuaded the court below to
invoke such jurisdiction to enable the accused to further cross-
examine a witness like DW4 if the allegations are correct. In these
circumstances I am persuaded to agree that this Criminal
Miscellaneous Case deserves to be allowed subject to terms. The
inconvenience caused to the complainant can certainly be directed to
be compensated.
4. This Criminal Miscellaneous Case is in these
circumstances allowed subject to conditions. The petitioner shall
deposit an amount of Rs.250/- (Rupees two hundred and fifty only) as
cost payable to the complainant within a period of fifteen days from
this date. The learned Magistrate shall allow the petitioner to further
examine DW4 if he complies with the said condition.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.3425/06 3
Crl.M.C.No.3425/06 4
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006