KAMALAM Vs. STATE OF KERALA

JUDGEMENT

(1.) C.C.No. 190/96 on the file of the Munsiff-Magistrate, South Paravoor is a case instituted on a complaint by the 2nd respondent alleging an offence under S.138 Negotiable Instruments Act. The petitioner had entered appearance and had been released on bail in February, 1997 itself. The complainant was examined as PW.1 as early as on 19.3.1998. On that day, she prayed for time for cross examination of the witness. The prayer was granted on condition that she will pay a cost of Rs.150/-. Thereafter the case underwent a number of adjournments, all at the instance of the petitioner/accused person. The petitioner filed Crl.M.P. No. 3316/98 praying for an opportunity to cross examine the complainant. When it came up on 22.10.1998, the junior counsel expressed inability to cross examine the complainant. It appears that the senior counsel was not present. So noting this, the learned magistrate dismissed the application. Thereafter the case has been adjourned a number of times. It is seen from the last of the orders that the case was taken for orders and is now being adjourned as she did not appear later and a warrant has also been issued against her.

(2.) It is fairly clear from the proceedings that the petitioner has been given maximum accommodation by the court. In spite of if she did not take the opportunity to cross examine the complainant. But still, the evidence will be incomplete and the disposal will not be proper unless the accused person gets an opportunity to cross examine the main witness. So, it is considered proper to give another chance to the accused to cross examine the complainant, but on terms only. If the petitioner pays or deposits for payment to the complainant Rs.500/- as costs within four weeks from today, the petitioner will be given an opportunity to cross examine the witness. The case will stand posted in the Trial Court on 8.11.1999 for the purpose. Parties to appear on that date.

(3.) It is seen from the copy of the proceedings dated 11.3.1999 that two bank managers were summoned possibly as defence witnesses. Counsel on both sides were absent and so the witnesses had to be sent back. It is not clear why the bank managers were cited. The number of cases under the Negotiable Instruments Act is on the increase. It is seen that the bank managers are being unnecessarily summoned to court and sometimes sent back without being examined, for the absence of the Presiding Officer or the counsel on either side. It is seen that in some cases, the bank managers are cited as witnesses even at the 202 Cr.P.C. enquiry stage. This is mostly unnecessary. In order to prove that the accused had an account or that the funds were insufficient, it is sufficient to summon a copy of the relevant account. It can be made available by the bankers on summons from the courts, with due certification under the Bankers Book Evidence Act. It can be taken as evidence without examining any witness. This procedure must be followed to the maximum extent possible. The Bank Managers should be cited as witnesses only if it is essential like a case where there is some discrepancy in the accounts.