IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1440 of 2007()
1. MUTHULEKSHMI AMMA,
... Petitioner
Vs
1. PRABHAKARAN P.K.,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.RINNY STEPHEN CHAMAPARAMPIL
For Respondent :SRI.B.RENJITHKUMAR
Dated :13/06/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 1440 OF 2007
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Dated this the 13th day of June, 2008
O R D E R
Petitioner in this case is the mother of the complainant in a
prosecution under Section 138 of the Negotiable Instruments Act.
The said complainant is not available in India and is working
abroad. A power of attorney holder of the complainant has been
examined as a witness(PW1) on the side of the complainant.
Such power of attorney holder in the course of evidence tendered
by him, had stated that the accused has his house near the house
of the mother of the complainant, i.e. the petitioner herein. The
accused has a case that he has nothing to do with the
complainant and that the complainant is a total stranger to him. It
is in that context that the power of attorney(witness) was cross
examined and the witness gave the answer that the complainant’s
mother has her house at Karthikappally and the house of the
accused is near the said house of the petitioner herein.
2. On the basis of the said statement of PW1, the accused
filed an application that the petitioner, i.e., the mother of the
complainant, be examined as a defence witness. That prayer was
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allowed by the learned Magistrate and summons was issued to the
petitioner. The petitioner in these circumstances went to the
Magistrate through counsel and prayed that she being sick and
infirm, may be exempted from appearance and may not be
compelled to appear. That prayer was rejected by the learned
Magistrate by the impugned order. It is in these circumstances
that the petitioner has come to this Court with this petition under
Section 482 Cr.P.C, requesting this Court to invoke the
extraordinary jurisdiction to ensure that she is not vexed and
harassed by unnecessary insistence of her appearance before the
court as a witness.
3. The respondent accused has entered appearance.
Arguments have been heard. The complainant has not been
arrayed as an accused, but she is the mother of the petitioner. I
am satisfied that the said inadequacy can be ignored.
4. The right of the accused to examine a defence witnesses
in a summons trial is stipulated in Section 254(2) Cr.P.C. It reads
as follows:
“254 (2) The Magistrate may, if he thinks fit, on the
application of the prosecution or the accused, issue a
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summons to any witness directing him to attend or to
produce any document or other thing.” (emphasis supplied)
5. There is an effective discretion conferred on the
Magistrate in the matter. Only if the Magistrate thinks it fit, the
Magistrate can and need issue summons to a witness on the
application filed by the accused. The right of the accused for
reasonable opportunity to defend himself in indictment is very
valuable and must be taken into account. But, at the same time,
the Magistrate have to ensure that such right is not invoked to
cause harassment to the complainant or the witnesses sought to
be summoned. If the Court is satisfied that the examination of the
witness is in any way relevant and necessary for the purpose of
setting up the defence of the accused, such prayer shall not be
turned out ordinarily. Only when the court is satisfied that the
prayer to summon a witness is unjustified or is calculated to cause
vexation and harassment to the witness or the complainant or is
calculated to prolong or protract the proceedings shall a court
exercise the discretion under Section 254(2) against an accused
person.
6.That leads me to the question as to what is the purpose of
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examination of the petitioner as a defence witness in this
prosecution launched by her son against the respondent accused.
7. The prosecution is under Section 138 of the Negotiable
Instruments Act. The accused raises the contention that he has
no connection whatsoever with the complainant. In the light of this
defence, the power of attorney holder was cross examined and he
stated that the house of the mother of the complainant is at
Karthikappally and that the house of the accused is also near to
such house. This is the only reason on which the petitioner is
sought to be examined as a defence witness. There is no case or
contention that the petitioner has anything to do with the accused
or the alleged transaction between the complainant and the
accused. Merely because the power of attorney holder has stated
that the house of the mother of the complainant is near the house
of the accused, I am certainly of opinion that it is not necessary or
relevant to examine the mother of the complainant. The mother of
the complainant, i.e. the petitioner herein, is shown to be an old
woman aged about 76 years. A medical certificate has also been
produced before the learned Magistrate to show that she is sick
and infirm. I do further note that only in the event of gross failure
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of justice and miscarriage of justice need the powers under
section 482 Cr.P.C. be invoked by this court.
8. Having considered all the relevant inputs, I am certainly of
opinion that there is no justifiable cause or reason for the accused
to examine the petitioner as a witness and it appears to me to be
transparently evident that the attempt is to vex and harass the
petitioner. No reasonable purpose is shown to exist. There is no
nexus between the petitioner and the accused. Her evidence is
not shown to be even relevant in the dispute which arises in this
prosecution. I am, in these circumstances, satisfied that this Court
cannot hesitate and has to invoke its powers under Section 482
Cr.P.C to prevent abuse of process of the Court. The process
issued to the petitioner deserves to be quashed.
9. In the result, this petition is allowed. The direction issued
by the learned Magistrate under Section 254(2) Cr.P.C to the
petitioner to be present before the court is hereby quashed.
R. BASANT, JUDGE
ttb
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