SHAHUL HAMEED M P Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is accused in C.C.No.624 of 2009 of the Court of learned Judicial First Class Magistrate-VI (Special Court for Maradu Cases), Kozhikode, aggrieved by order dated March 16, 2011 dismissing C.M.P.No.593 of 2011. That is a petition filed by the petitioner who faces trial for prosecution under Sec.138 of the Negotiable Instruments Act to summon witnesses on his side. Learned Magistrate has dismissed that petition by the impugned order. Learned counsel contends that having regard to the defence set up by petitioner examination of witnesses as requested was necessary. Learned counsel for second respondent/complainant submitted that even in the statement given by petitioner under Sec.313 of the Code of Criminal Procedure (for short, "the Code") there is no mention about presence of witnesses. Attempt of petitioner is only to protract the proceeding.

(2.) I have gone through the order under challenge and find that another petition for similar prayer was dismissed by the learned Magistrate on a prior occasion. It is submitted, and it is not disputed also that thereafter petitioner was examined as a witness. It is while so, petitioner filed C.M.P.No.593 of 2011. Learned counsel for petitioner submits that petitioner is satisfied with examining witness Nos.1 to 3 in Annexure-A6, list of witnesses and that petitioner may be permitted to examine other witnesses.

(3.) NOR am I impressed by the contention that because presence of witnesses is not stated in the statement under Sec.313 of the Code, he should not get an opportunity to examine the witness. Having regard to the circumstances of the case I am inclined to set aside the impugned order and remit C.M.P.No.593 of 2011 to the learned Magistrate for fresh consideration to the extent it concerned witness Nos.1 to 3 in Annexure-A6, list of witness. It is open to the petitioner to file a statement before the learned Magistrate specifying the points sought to be proved by witness Nos.1 to 3 in Annexure-A6, list and on such statement being filed learned Magistrate shall pass appropriate orders after hearing counsel on both sides on the request to summon the said witnesses. With the above direction this criminal miscellaneous case is allowed and the impugned order is set aside. Petitioner shall file his statement if any as aforesaid in the court below on or before 18.04.2011.