ALBO NEON Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed by the complainant seeking to set aside Annexure A5 order and to permit the petitioner to file a fresh proof affidavit in its place. Annexure A5 order is passed by the Judicial First Class Magistrate Court, Kalamassery in an application moved as Crl.M.P.No.2551/2018 in S.T.No.4281/2016. Crl.M.P. No.2551/2018 was filed by the complainant, the petitioner herein before the above court seeking to withdraw the affidavit filed by him in lieu of chief examination, under Section 145(1) of the Negotiable Instrument Act (fort short 'the N.I Act'). The complaint was launched by the petitioner before the court concerned under Section 142(2) of the N.I.Act to prosecute the respondents for the offence under Section 138 of the N.I.Act. The complaint was taken on file based on the proof affidavit filed by the complainant in lieu of examination in chief as provided under Section 145(1) of the N.I Act. A copy of the same is produced along with this petition as Annexure A2. The permission to withdraw the proof affidavit filed by him in lieu of chief examination was sought by the petitioner for the reason that certain matters were entered therein wrongly to the effect :

(2.) The Judicial First Class Magistrate Court, Kalamassery, has passed the impugned order as Annexure A5 in the application seeking amendment. The reason stated by the Magistrate while dismissing the application was that absolutely no provision is available in the Code which permits withdrawal of proof affidavit after filing it before a court of law. It is aggrieved by the aforesaid order that the petitioner has approached this Court in the present petition.

(3.) Sri.Ajoy P.B, the learned counsel for the petitioner urged that the court below is perfectly unjustified in dismissing the application and denying permission to the petitioner to withdraw the proof affidavit filed in lieu of chief examination. According to him, the petitioner had sought for correction of certain errors, that had crept into the proof affidavit and the correction sought are very much essential for arriving at a just decision in the case on hand. Accordingly, Annexure A5 order is sought to be set aside and a fresh affidavit filed incorporating the corrections.