High Court Kerala High Court

T.M.Sadique vs K.K.Abdul Shamsu on 19 July, 2007

Kerala High Court
T.M.Sadique vs K.K.Abdul Shamsu on 19 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 1137 of 2006()


1. T.M.SADIQUE, S/O.HASSAN, "ASMAS",
                      ...  Petitioner

                        Vs



1. K.K.ABDUL SHAMSU,
                       ...       Respondent

2. STATE OF KERALA, REP.

                For Petitioner  :SRI.C.KHALID

                For Respondent  :SRI.T.M.ABDUL LATHEEF

The Hon'ble MR. Justice R.BASANT

 Dated :19/07/2007

 O R D E R
                               R.BASANT, J.

                            ----------------------

                         Crl.M.C.No.1137 of 2006

                        ----------------------------------------

                   Dated this the 19th day of July 2007


                                   O R D E R

The petitioner is the complainant in a prosecution under

Section 138 of the Negotiable Instruments Act. The matter has

now reached the stage of defence evidence. The accused filed

applications at the defence stage. The matter has had a

chequered career. Suffice it to say that the learned Magistrate

passed orders and allowed two requests made by the petitioner

under Annexures 3 and 4.

2. In Annexure 3, there was a direction that the

petitioner/accused shall file a consolidated additional witness list

and on payment of necessary process fee, summons shall be

issued to the additional witnesses. The short grievance of the

petitioner with respect to that direction is that the

petitioner/complainant is also shown as a witness in the defence

witness list filed by the accused. The complainant does not want

to examine himself. The complainant is prepared to take the risk

arising out of such non-examination. The petitioner has no right

to summon the complainant as a witness on his side. In these

Crl.M.C.No.1137/07 2

circumstances, it may be clarified that under Annexure 3 order,

the accused cannot choose to examine the

petitioner/complainant as a witness on the side of the accused.

That request can certainly be accepted.

3. By Annexure 4 order, the learned Magistrate has

directed the complainant to appear before the court and furnish

the required number of specimen handwriting and signature for

comparison. The learned counsel for the petitioner submits that

the complainant is employed abroad. He is unable to come to

this court now. It is further contended that the accused has no

right to insist on such appearance of the complainant. The

complainant does not in these circumstances want to furnish the

specimen signatures and handwriting of the complainant for

comparison. In the light of that specific statement made by the

learned counsel for the petitioner – that the complainant does not

want to appear and furnish the required specimen handwriting

and signatures, I am satisfied that the learned Magistrate can

take note of that assertion by the complainant and proceed with

the matter. Appropriate inference and conclusions can be drawn

on the basis of the materials made available before the learned

Crl.M.C.No.1137/07 3

Magistrate in the light of that specific assertion. I am satisfied

that the submission of the learned counsel for the

petitioner/complainant that the complainant does not want to

furnish the specimen handwriting and signatures can be taken

note of and Annexure 4 order vacated. Needless to say, the

accused will be at liberty to take necessary steps to prove the

documents by whatever other means that are available to him

under law.

4. This Criminal Miscellaneous Case is, in these

circumstances, allowed to the above extent.






                                                       (R.BASANT, JUDGE)

jsr


                           // True Copy//          PA to Judge


Crl.M.C.No.1137/07    4


Crl.M.C.No.1137/07    5


       R.BASANT, J.





         CRL.M.CNo.





            ORDER





21ST DAY OF MAY2007