SOUTHERN INVESTMENTS PRIVATE LIMITED, ABRAHAM THOMAS, MANAGING DIRECTOR AND AJITH THOMAS, DIRECTOR Vs. STATE OF KERALA AND HUDCO, KSHB COMMERCIAL CUM RESIDENTIAL

JUDGEMENT

(1.) The petitioners are the accused in a prosecution under Section 138 of the Negotiable Instruments Act. The prosecution was initiated as early as in 2003 as can be seen from the number assigned to the case (C.C. No. 32/03). This prosecution under Section 138 of the Negotiable Instruments Act continues even now. The matter has reached the stage of defence evidence. The petitioners had filed two defence lists. Both were filed before the matter reached the stage of defence evidence.

(2.) The learned Magistrate permitted the petitioners to examine the witnesses shown in the first list; but refused to issue summons to the witnesses shown in the second schedule. The learned Magistrate, after considering the claim, had refused the prayer in para-3 of the order which reads as follows:

(3.) I have carefully perused the rival contentions and the relevant records. It is admitted case of the parties that the complainant Hudco advanced more than four crores by way of loan to the accused company to complete their projects at Edapalli, Kochi. It is also admitted that there was agreement between the parties having amended on different occasions and also the issuance of the cheques involved in this case by the accused company. The defence version is that there was violation of the terms of the agreement by the complainant and also that the cheques involved in the case are given only as part of documentation and not as a mode of discharging the liability. It is pertinent to note that volumes of documents produced by the accused were marked in the above case and almost all material papers of correspondence and transaction between the parties are produced. Though seven officials were cited as witnesses and numerous documents were sought to be summoned, there is absolutely nothing in the second witness list as to the point to be proved by the examination of additional witnesses and by the production of the additional documents. There are three other cases in the series of the year 2003 is pending before this Court and reckoning the facts and circumstance I am of the view that the second witness list is filed only to protract the proceedings and that witness and the documents sought to be summoned are not relevant to prove the defence case or to disprove the case of the complainant.