Kerala High Court
T.C.Kunhali vs State Of Kerala on 24 July, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 24TH DAY OF JULY 2024 / 2ND SRAVANA, 1946
CRL.MC NO. 6247 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN ST NO.34 OF 2023 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II, NADAPURAM
PETITIONER:
T.C.KUNHALI
AGED 45 YEARS
S/O MOIDU,
THONDICHALIL HOUSE,
MAMBILAKOOL,
VANIMEL P.O,
KALLACHI VIA,
VATAKARA TALUK,
KOZHIKODE DISTRICT,
PIN - 673506
BY ADVS.
M.P.PRIYESHKUMAR
DIVYA T.P.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM, KOCHI,
PIN - 682031
2 KUTTIALI E.K
AGED 58 YEARS
S/O MOIDU HAJI,
AGED 58 YEARS,
CHATHAMGOTT HOUSE,
PURAMERI POST VATAKARA TALUK,
KOZHIKODE, PIN - 673503
OTHER PRESENT:
SRI. NOUSHAD K. A. (PP)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 6247 OF 2024
2
BECHU KURIAN THOMAS, J.
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Crl.M.C. No. 6247 of 2024
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Dated this the 24th day of July, 2024
ORDER
Petitioner challenges the order dated 06-07-2024 in C.M.P.No.589/2024 in S.T.No.34/2023 on the files of the Judicial First Class Magistrate's Court-II, Nadapuram.
2. Petitioner is the accused in proceedings under Section 138 of the Negotiable Instruments Act, 1881. During the trial in the above case, an Advocate, who is a Notary Public, was examined by the complainant as PW-2. An agreement allegedly executed between the parties was notarized by PW-2 and during the deposition, he affirmed that he had notarized the said agreement. After the evidence of the complainant was completed, petitioner filed an application under Section 311 Cr.P.C to recall PW-2 and also to produce the notary register and to examine PW-2 again.
3. By the impugned order, the learned Magsitrate dismissed the petition after observing that the execution of the cheque has not even been denied, and further that the mere CRL.MC NO. 6247 OF 2024 3 production of the notary register or further examination of PW- 2 will not serve any purpose.
4. I have heard Sri.Priyesh Kumar M.P., the learned counsel for the petitioner as well as Sri.Noushad K.A., the learned Public Prosecutor.
5. As rightly observed by the learned Magistrate, when the execution of the cheque is not even denied, the production of the notary register would not serve any purpose, especially when the Notary himself had given evidence as PW-2. It is conceded by the counsel for the petitioner that no complaint has ever been raised by any person regarding the conduct of the notary, nor has any prosecution even been initiated. Since all official acts are presumed to be done regularly, the presumption of the notarial act can also be presumed to have been done regularly. The notary was examined as a witness, and no question was put to him regarding the absence of the notary register also.
6. In such circumstances, I do not find any irregularity or perversity in the impugned order warranting an intereference by this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
CRL.MC NO. 6247 OF 2024 4 Accordingly, this Crl.M.C is dismissed.
Sd/-
BECHU KURIAN THOMAS JUDGE AJM CRL.MC NO. 6247 OF 2024 5 APPENDIX OF CRL.MC 6247/2024 PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE LEARNED MAGISTRATE Annexure A2 A CERTIFIED COPY OF THE ORDER IN CMP 589/2024 IN ST NO.34/2023 Annexure A3 A TRUE COPY OF THE DEPOSITION OF PW1