Kerala High Court
M/S.Pattasseril Private Ltd vs State Of Kerala on 17 January, 2012
Author: P.S. Gopinathan
Bench: P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN
TUESDAY, THE 17TH DAY OF JANUARY 2012/27TH POUSHA 1933
CRMC.No. 41 of 2012 ()
OS.267/2002 of PRINCIPAL SUB COURT,ERNAKULAM
(CRL. M.P. 1095/2011 IN CC.2764/200 of J.M.F.C.-II, ERNAKULAM)
PETITIONERS/ACCUSED:
1. M/S.PATTASSERIL PRIVATE LTD
PATTASSERIL,22/61/2,VAIKOM ROAD
TRIPUNITHURA,REP.BY ANIYAMMA RAVINDHAR, DIRECTOR.
2. M/S.ANIYAMMA RAVINDHAR
W/O.RAVINDHAR @ THAMBI ELIAS DIRECTOR
PATTASSERIL PVT LTD; 22/61/2,VAIKOM ROAD
TRIPUNITHURA.
3. MRS.SUSAN JIMMY,
W/O.JIMMY ELIAS DIRECTOR,
PATTASSERIL PVT LTD;
22/61/2,VAIKOM ROAD, TRIPUNITHURA
BY ADVS.SRI.VARGHESE C.KURIAKOSE
SRI.T.A.ABDUL RASHEED
SMT.RENJINI RAJENDRAN
RESPONDENTS/STATE & COMPLAINANT:
1. STATE OF KERALA
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
2. THE ASSOCIATED CEMENT COMPANIES LTD;
ZONAL OFFICE AT 4/880-D2,IIND FLOOR
GOLDEN PLAZA, CHITTOOR ROAD
KOCHI-18, REP.BY ITS POWER OF ATTORNEY HOLDER &
SENIOR MANAGER,
MR.JAYANTHI VIJAYA BHASKARA SASTHRI.
R2 BY SRI.LAL K.JOSEPH
R2 BY SRI.A.A.ZIYAD RAHMAN
R2 BY SRI.V.S.SHIRAZ BAVA
R2 BY SMT.M.C.SANITHA
PUBLIC PROSECUTOR SRI. RAJESH VJAYAN.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 17-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.S. GOPINATHAN, J.
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CRL. M.C. No. 41 OF 2012
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DATED THIS, THE 17th DAY OF JANUARY, 2012.
O R D E R
In this petition under Section 482 of the Code of Criminal Procedure petitioners seek an order to quash Annexure 6 order in Crl.M.P. No.1095/2011 on the files of the Judicial Magistrate of First Class-II, Ernakulam. The case has got a chequered history. Petitioners were prosecuted by the second respondent alleging offence under Section 138 of the Negotiable Instruments Act. Evidence was recorded long back. The Director of the second respondent who was examined on the side of the petitioners as DW.2 is the signatory in the complaint on behalf of the second respondent. Since a power of attorney was subsequently executed in favour of another person, DW2 was not examined on the side of the second respondent. Petitioners cited DW.2 as a witness on their side. Accordingly he was examined. Arguments were heard and the case was posted for judgment. It appears that, before pronouncing the judgment, the magistrate was transferred and the case was again heard. Thereafter, the second respondent filed a petition under Section 311 of the Code of Criminal Procedure for re-opening of evidence. It was allowed. Petitioner also filed CRL. M.C. 41/2012 2 the above petition for recalling DW.2. The purpose of recalling the witness is to mark the deposition of the same witness who was examined as DW.1 in O.S. 268/2002 before the Prl. Sub Court, Ernakulam. By the impugned order, the learned magistrate dismissed the petition. In dismissing the petition, the learned magistrate also had taken note that the case was earlier reopened.
2. Having heard either side, I cannot rule out the relevancy of the document sought to be marked. However, DW.2 being a signatory to the complaint, in the event the petitioners had sought for cross examining him with reference to his earlier deposition in the civil dispute, it cannot be styled as a request without any merit or with any malafides. On the other hand, I do not think that the second respondent would any way be prejudiced. Of course there may be chance for dragging the matter a little more. Second respondent had sufficiently contributed for dragging. Taking note that the case is pending since 2001, I find that it may not be appropriate to shut down the evidence and have a disposal. In the event DW.2 is summoned and further cross examined, no prejudice would be caused to the second respondent. Though the evidence was reopened on earlier occasion, it was at the instance of the second respondent for which the petitioner cannot be found fault with except that he could have availed CRL. M.C. 41/2012 3 that opportunity. In the above circumstances, I find that the learned magistrate had gone wrong in declining the relief sought by the petitioners whereby the opportunity to the petitioners to present their case was declined resulting denial of justice. Therefore I find that this is a fit case to invoke the jurisdiction under Section 482 of the Code of Criminal Procedure.
In the result, the order impugned is set aside and the petition before the court below would stand allowed. Petitioner is permitted to recall DW.2 and for further examination. It is reported that DW.2 is now employed at Calcutta. It is for the petitioners to deposit necessary travelling allowance. Learned counsel for the second respondent submitted that batta need not be deposited and that DW.2 would be appearing before the court and the batta need be paid by hand. DW.2 being an employee under the second respondent, the second respondent shall make available the witness at the earliest not later than six weeks from today. The learned magistrate is directed to dispose of the case thereafter within four weeks.
P.S. GOPINATHAN, (JUDGE) knc/-